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

Document Transcript

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 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 , 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 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 acted as the prosecuting attorney. and represented the defendants. 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.
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, 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 “” 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 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, , 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
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

    The case is named after Jacob Gates, the first defendant listed in the Daviess County Circuit Court indictment. (Indictment, ca. 10 Apr. 1839 [State of Missouri v. Gates et al. for Treason].)  

  2. 2

    See LeSueur, “Missouri’s Failed Compromise,” 113–141; Introduction to Part 2: 8 July–29 Oct. 1838, in JSP, D6:169–175; Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839, in JSP, D6:265–278; Introduction to State of Missouri v. JS et al. for Riot; B. M. Lisle, Jefferson City, MO, to John B. Clark, Richmond, MO, 26 Oct. 1838; Lilburn W. Boggs, Jefferson City, MO, to John B. Clark, Fayette, MO, 27 Oct. 1838; Lilburn W. Boggs, Jefferson City, MO, to John B. Clark, 6 Nov. 1838, Mormon War Papers, MSA.  

    LeSueur, Stephen C. “Missouri’s Failed Compromise: The Creation of Caldwell County for the Mormons.” Journal of Mormon History 31, no. 3 (Fall 2005): 113–144.

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

    Mormon War Papers, 1838–1841. MSA.

  3. 3

    John B. Clark, Richmond, MO, to Lilburn W. Boggs, Jefferson City, MO, 10 Nov. 1838, underlining in original; Samuel D. Lucas, Independence, MO, to Lilburn W. Boggs, [Jefferson City, MO], 5 Nov. 1838, Mormon War Papers, MSA.  

    Mormon War Papers, 1838–1841. MSA.

  4. 4

    U.S. Constitution, art. 1, sec. 8; art. 3, sec. 3; see also Hurst, Law of Treason in the United States, chap. 4.  

    Hurst, James Willard. The Law of Treason in the United States: Collected Essays. Contributions in American History, no. 12. Westport, CT: Greenwood Publishing, 1971.

  5. 5

    Ex Parte Bollman and Ex Parte Swartwout, 4 Cranch 75 (1807).  

    Cranch / Cranch, William. Reports of Cases Argued and Adjudged in the Supreme Court of the United States, in the Years 1805 and 1806. 9 vols. Various publishers, 1804–1817.

  6. 6

    United States v. Burr, 4 Cranch 470 (1807–1808).  

    Cranch / Cranch, William. Reports of Cases Argued and Adjudged in the Supreme Court of the United States, in the Years 1805 and 1806. 9 vols. Various publishers, 1804–1817.

  7. 7

    Missouri Constitution of 1820, art. 13, sec. 15; see also McConkie, “State Treason: The History and Validity of Treason,” 281–336.  

    McConkie, J. Taylor. “State Treason: The History and Validity of Treason against Individual States,” Kentucky Law Journal 101, no. 2 (2013): 281–336.

  8. 8

    An Act concerning Crimes and Their Punishments [20 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 166, art. 1, sec. 1.  

    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.

  9. 9

    John B. Clark, Richmond, MO, to Lilburn W. Boggs, Jefferson City, MO, 10 Nov. 1838; Lilburn W. Boggs, Jefferson City, MO, to John B. Clark, 19 Nov. 1838, Mormon War Papers, MSA; An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], pp. 474–475, art. 2, secs. 2–3; Madsen, “Joseph Smith and the Missouri Court of Inquiry,” 93–136.  

    Mormon War Papers, 1838–1841. MSA.

    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.

  10. 10

    Sidney Rigdon, Appeal to the American People, 1840, p. 66; Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason], p. [2]; Agreement with Amos Rees and Alexander Doniphan, 28 Nov. 1838. The fifty-three men were Martin Allred, William Allred, Caleb Baldwin, John Buchanan, Daniel Carn, Darwin Chase, Moses Clawson, Benjamin Covey, Sheffield Daniels, John Earl, Elisha Edwards, David Frampton, Jacob Gates, Luman Gibbs, George D. Grant, George W. Harris, Anthony Head, James Henderson, Francis M. Higbee, John Higbee, Chandler Holbrook, Jesse D. Hunter, Benjamin Jones, George Kimball, Amasa Lyman, Silas Maynard, Alexander McRae, Isaac Morley, Elijah Newman, Zedekiah Owens, Ebenezer Page, Edward Partridge, David Pettegrew, Parley P. Pratt, Thomas Rich, Sidney Rigdon, Alanson Ripley, Ebenezer Robinson, George W. Robinson, Daniel Shearer, Norman Shearer, Hyrum Smith, JS, Allen Stout, John Tanner, Daniel Thomas, Alvah Tippets, Sidney Turner, Washington Voorhees, Andrew Whitlock, Lyman Wight, Joseph W. Younger, and Henry Zabrisky. (Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason], pp. [1]–[2].)  

  11. 11

    The eleven men were Samuel Bent, Ebenezer Brown, Jonathan Dunham, King Follett, Clark Hallett, Sylvester Hulet, Joel Miles, James Newberry, Morris Phelps, James Rollins, and William A. Wightman. (Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason], pp. [34], [61], [70], [100].)  

  12. 12

    Witnesses for the prosecution included Sampson Avard, Charles Bleckley, Samuel Bogart, Elisha Camron, Nathaniel Carr, John Cleminson, James Cobb, Asa Cook, John Corrill, Wyatt Cravens, Freeburn Gardner, Addison Greene, George M. Hinkle, Andrew Job, Jesse Kelley, Samuel Kimble, Timothy Lewis, John Lockhart, Patrick Lynch, Joseph McGee, Jeremiah Myers, Nehemiah Odle, Thomas Odle, James Owens, Reed Peck, Morris Phelps, William W. Phelps, Addison Price, John Raglin, Allen Rathburn, Burr Riggs, Abner Scovil, Benjamin Slade, Robert Snodgrass, William Splawn, John Taylor, James Turner, George Walters, John Whitmer, Ezra Williams, George Worthington, and Porter Yale. (Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason], pp. [2]–[113], [122]–[123]; see also Subpoena, 10 Nov. 1838 [State of Missouri v. Gates et al. for Treason] ; Subpoena, 11 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; Subpoena, 15 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; Subpoena, 21 Nov. 1838 [State of Missouri v. Gates et al. for Treason].)  

  13. 13

    An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 476, art. 2, secs. 13, 20.  

    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.

  14. 14

    Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; “The Mormon Prisoners,” Daily Missouri Republican (St. Louis), 13 Dec. 1838, p. [2]; O. H. Searcy to John B. Clark, ca. Dec. 1838, copy, in Minutes and Testimonies, 12–29 Nov. 1838, Copy and Letter [State of Missouri v. Gates et al. for Treason], p. [50]; History of Ray County, Mo., 602–603; Austin A. King, Richmond, MO, to James Minor, Jefferson City, MO, 4 Feb. 1841, Mormon War Papers, MSA.  

    Daily Missouri Republican. St. Louis. 1822–1869.

    History of Ray County, Missouri, Written and Compiled from the Most Authentic Official and Private Sources. . . . St. Louis, MO: Missouri Historical Co., 1881.

    Mormon War Papers, 1838–1841. MSA.

  15. 15

    See Daniel 2:34–35; Sampson Avard, Testimony, Richmond, MO, Nov. 1838, pp. [2]–[20]; George M. Hinkle, Testimony, Richmond, MO, Nov. 1838, p. [42]; John Corrill, Testimony, Richmond, MO, Nov. 1838, p. [31]; Robert Snodgrass, Testimony, Richmond, MO, Nov. 1838, p. [35], in Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; see also Whittaker, “Book of Daniel in Early Mormon Thought”; and Petition, between 9 and 15 Mar. 1839 [State of Missouri v. Gates et al. for Treason].  

    Whittaker, David J. “The Book of Daniel in Early Mormon Thought.” In By Study and Also by Faith: Essays in Honor of Hugh W. Nibley on the Occasion of His Eightieth Birthday, 27 March 1990, edited by John M. Lundquist and Stephen D. Ricks, 1:155–201. Salt Lake City: Deseret Book; Provo, UT: Foundation for Ancient Research and Mormon Studies, 1990.

  16. 16

    Latter-day Saint sources confirm the existence of the Danites and that JS approved of at least some of their actions, although he evidently was not briefed on all of their plans. (See Sampson Avard, Testimony, Richmond, MO, Nov. 1838, pp. [2]–[20], in Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; Historical Introduction to Constitution of the Society of the Daughter of Zion, ca. Late June 1838; JSP, D6:306n199; Petition, between 9 and 15 Mar. 1839 [State of Missouri v. Gates et al. for Treason]; and JSP, D6:398–399n781.)  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

  17. 17

    Sampson Avard, Testimony, Richmond, MO, Nov. 1838, pp. [7]–[8]; George M. Hinkle, Testimony, Richmond, MO, Nov. 1838, p. [39]; John Cleminson, Testimony, Richmond, MO, Nov. 1838, pp. [52]–[54]; Reed Peck, Testimony, Richmond, MO, Nov. 1838, pp. [59]–[60]; William W. Phelps, Testimony, Richmond, MO, Nov. 1838, pp. [90]–[91], in Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]. James Cobb and Charles Bleckley, neither of whom was a member of the church, both testified that they saw JS on horseback observing a house burn in Millport. (James Cobb, Testimony, Richmond, MO, Nov. 1838, p. [79]; Charles Bleckley, Testimony, Richmond, MO, Nov. 1838, p. [78], in Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason].)  

  18. 18

    Hyrum Smith later stated that, per King’s instructions, the prisoners identified sixty potential defense witnesses. Although the judge apparently subpoenaed these individuals, only the following seven testified for the defense: Jonathan Barlow, Ezra Chipman, Arza Judd Jr., Thorit Parsons, Delia Pine, Malinda Porter, and Nancy Rigdon. Multiple Latter-day Saints described officers of the court harassing potential witnesses or not permitting them to testify. (Murdock, Journal, ca. Nov. 1838, [105]–[106]; Hyrum Smith, Testimony, Nauvoo, IL, 1 July 1843, pp. [18]–[19]; George Pitkin, Testimony, Nauvoo, IL, 1 July 1843, pp. [1]–[2], Nauvoo, IL, Records, CHL; Malinda Porter, Testimony, Richmond, MO, Nov. 1838, p. [115]; Delia F. Pine, Testimony, Richmond, MO, Nov. 1838, pp. [116]–[117]; Nancy Rigdon, Testimony, Richmond, MO, Nov. 1838, pp. [117]–[118]; Jonathan W. Barlow, Testimony, Richmond, MO, Nov. 1838, pp. [118]–[119]; Thorit Parsons, Testimony, Richmond, MO, Nov. 1838, pp. [119]–[120]; Ezra Chipman, Testimony, Richmond, MO, Nov. 1838, pp. [120]–[121]; Arza Judd Jr., Testimony, Richmond, MO, Nov. 1838, p. [121], in Minutes and Testimonies, 12–29 Nov. 1838 [State of Missouri v. Gates et al. for Treason].)  

    Murdock, John. Journal, ca. 1830–1859. John Murdock, Journal and Autobiography, ca. 1830–1867. CHL. MS 1194, fd. 2.

  19. 19

    Ruling, 29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]. Boggs was aware of the Burr cases, although his one extant reference to the precedents focused on jurisdictional issues rather than the strict definition of treason. Years later, John B. Clark was quoted as saying that he “had an understanding with King that they [the Latter-day Saint prisoners] were to be put in prison, but were not to be guarded too closely, and if they got away and left the state, they would be allowed to go.” Contemporary evidence for this has not been located. (Lilburn W. Boggs, Jefferson City, MO, to John B. Clark, Richmond, MO, 19 Nov. 1838, Mormon War Papers, MSA; Stevens, Centennial History of Missouri, 2:119.)  

    Mormon War Papers, 1838–1841. MSA.

    Stevens, Walter B. Centennial History of Missouri (The Center State): One Hundred Years in the Union, 1820–1921. Vol. 1. Chicago: S. J. Clarke Publishing, 1921.

  20. 20

    King also held that there was probable cause that Latter-day Saints Parley P. Pratt, Norman Shearer, Darwin Chase, Luman Gibbs, and Morris Phelps had murdered Moses Rowland during the Crooked River skirmish, a clash between Latter-day Saints and other Missourians that occurred near the border between Ray and Caldwell counties on 25 October 1838. Pratt and the others were committed to the Ray County jail to await trial. The remaining defendants were either discharged by King for lack of evidence or bound to appear at the next session of the Daviess County Circuit Court to answer charges of “Arson, Burglary, Robbery and Larceny.” (Ruling, 29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839, in JSP, D6:269; see also Order of Discharge, 24 Nov. 1838 [State of Missouri v. Gates et al. for Treason].)  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

  21. 21

    See Mittimus, 29 Nov. 1838 [State of Missouri v. Gates et al. for Treason]; and Letter to Emma Smith, 1 Dec. 1838.  

  22. 22

    As the legal documents for this habeas corpus are apparently not extant, it is unknown why the judge granted Rigdon bail. (See Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839, in JSP, D6:276–277; see also Affidavit, ca. 25 Jan. 1839 [State of Missouri v. Gates et al. for Treason].)  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

  23. 23

    The memorial led to a change in the law that would permit the prisoners to seek a change of venue out of the judicial circuit. (See Historical Introduction to Memorial to the Missouri Legislature, 24 Jan. 1839, in JSP, D6:318–320; and An Act to Amend an Act concerning Criminal Proceedings [13 Feb. 1839], Laws of the State of Missouri [1838–1839], p. 98.)  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

    Laws of the State of Missouri, Passed at the First Session of the Tenth General Assembly, Begun and Held at the City of Jefferson, on Monday, the Nineteenth Day of November, in the Year of Our Lord, One Thousand Eight Hundred and Thirty-Eight. Jefferson, MO: Calvin Gunn, 1838.

  24. 24

    See Historical Introduction to Petition to George Tompkins, between 9 and 15 Mar. 1839, in JSP, D6:341–344; 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.  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

    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.

  25. 25

    Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839, in JSP, D6:278, 278n66.  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

  26. 26

    In late January 1839, the Missouri legislature reorganized the state’s second and fifth judicial circuits, moving Daviess County from the fifth circuit to the newly created eleventh circuit, with Burch as the circuit’s judge. (An Act to Establish a Judicial Circuit out of the Second and Fifth Judicial Circuits [31 Jan. 1839], Laws of the State of Missouri [1838–1839], p. 34, sec. 3; Bay, Bench and Bar of Missouri, 487; Daviess Co., MO, Circuit Court Record, Apr. 1839, vol. A, 39, 41, Daviess County Courthouse, Gallatin, MO.)  

    Laws of the State of Missouri, Passed at the First Session of the Tenth General Assembly, Begun and Held at the City of Jefferson, on Monday, the Nineteenth Day of November, in the Year of Our Lord, One Thousand Eight Hundred and Thirty-Eight. Jefferson, MO: Calvin Gunn, 1838.

    Bay, W. V. N. Reminiscences of the Bench and Bar of Missouri. . . . St. Louis: F. H. Thomas, 1878.

    Daviess County, Missouri. Circuit Court Record, vol. A, July 1837–Oct. 1843. Daviess County Courthouse, Gallatin, MO.

  27. 27

    Burnett, Recollections and Opinions, 65.  

    Burnett, Peter H. Recollections and Opinions of an Old Pioneer. New York: D. Appleton, 1880.

  28. 28

    The grand jury included John Anderson, Nathaniel Blakely, John Brown, William Cox, John Dowdy, John Edwards, Elijah Frost, Richard Grant, Andrew McHany, Moses Netherton, Jonathan Oxford, Robert P. Peniston Jr., Robert P. Peniston Sr. (foreman), John Pinkerton, John Raglin, Jacob Rogers, John Stokes, Christopher Stone, Nicholas Trosper, and Benedict Weldon. (Daviess Co., MO, Circuit Court Record, Apr. 1839, bk. A, 43, Daviess County Courthouse, Gallatin, MO; An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], pp. 479–480, art. 3, secs. 7–8; see also “Grand Jury,” in Bouvier, Law Dictionary, 1:447–449.)  

    Daviess County, Missouri. Circuit Court Record, vol. A, July 1837–Oct. 1843. Daviess County Courthouse, Gallatin, MO.

    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.

    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.

  29. 29

    See Wharam, Treason Trials, 1794, chaps. 12–13, 18–19; Gurney, Trial of Thomas Hardy for High Treason, 1:18–25, 311; Wentworth, Complete System of Pleading, 4:14–20; and Chitty, Practical Treatise on the Criminal Law, 2:74–78.  

    Wharam, Alan. The Treason Trials, 1794. Leicester: Leicester University Press, 1992.

    Gurney, Joseph. The Trial of Thomas Hardy for High Treason, at the Sessions House in the Old Bailey. . . . 4 vols. London, 1794.

    Wentworth, John. A Complete System of Pleading: Comprehending the Most Approved Precedents and Forms of Practice; Chiefly Consisting of Such as Have Never before Been Printed. . . . 10 vols. London: G. G. and J. Robinson, 1797–1799.

    Chitty, Joseph. A Practical Treatise on the Criminal Law; Comprising the Practice, Pleadings, and Evidence, Which Occur in the Course of Criminal Prosecutions. . . . 4 vols. Philadelphia: Edward Earle, 1819.

  30. 30

    The defendants named in the indictment included Caleb Baldwin, Alexander McRae, Hyrum Smith, JS, and Lyman Wight, the five men against whom Austin A. King held that there was probable cause that they had committed treason in Daviess County. In addition, the indictment named Samuel Bent, Seymour Brunson, Reynolds Cahoon, Daniel Carn, David Carns, Moses Daley, Jabez Durfee, James Durfee, Perry Durfee, Benjamin Durphee, Jacob Gates, George W. Harris, Elias Higbee, George M. Hinkle, Jesse D. Hunter, Vinson Knight, Thomas B. Marsh, George Morey, Arthur Morrison, Ebenezer Page, Finley Page, Edward Partridge, David Pettegrew, Parley P. Pratt, Thomas Rich, Alanson Ripley, Ebenezer Robinson, George W. Robinson, James H. Rollins, Roswell Stevens, Sidney Turner, Washington Voorhees, James Whitaker, William A. Wightman, James Worthington, and Joseph W. Younger. (Indictment, ca. 10 Apr. 1839 [State of Missouri v. Gates et al. for Treason].)  

  31. 31

    Clark listed the witnesses who supported the treason indictment as Sampson Avard, Adam Black, John Brown, John Comer, John Corrill, John Edwards, Ira Glass, Jackson Job, Robert McGaw, Francis McGuire, Henry McHenry, Josiah Morin, Laburn Morin, Waterman Phelps, and Jacob Rogers. As grand jury proceedings are legally kept secret, no transcripts of the witness testimonies have survived. (Indictment, ca. 10 Apr. 1839 [State of Missouri v. Gates et al. for Treason]; “Grand Jury,” in Bouvier, Law Dictionary, 1:449.)  

    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. 2nd ed. 2 vols. Philadelphia: T. and J. W. Johnson, 1843.

  32. 32

    See Indictment, ca. 10 Apr. 1839 [State of Missouri v. Gates et al. for Treason]; and An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 481, art. 3, sec. 19.  

    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.

  33. 33

    Docket Entry, Indictment, 11 Apr. 1839 [State of Missouri v. Gates et al. for Treason].  

  34. 34

    See Lilburn W. Boggs, Jefferson City, MO, to John B. Clark, Fayette, MO, 27 Oct. 1838, Mormon War Papers, MSA.  

    Mormon War Papers, 1838–1841. MSA.

  35. 35

    Docket Entry, Removal Orders, 11 Apr. 1839 [State of Missouri v. Gates et al. for Treason].  

  36. 36

    See Historical Introduction to Promissory Note to John Brassfield, 16 Apr. 1839, in JSP, D6:422–426.  

    JSP, D6 / Ashurst-McGee, Mark, David W. Grua, Elizabeth Kuehn, Alexander L. Baugh, and Brenden W. Rensink, eds. Documents, Volume 6: February 1838–August 1839. Vol. 6 of the Documents series of The Joseph Smith Papers, edited by Ronald K. Esplin, Matthew J. Grow, and Matthew C. Godfrey. Salt Lake City: Church Historian’s Press, 2017.

  37. 37

    Indictment, ca. 10 Apr. 1839, Copy [State of Missouri v. Gates et al. for Treason]; Docket Entry, Indictment, 11 Apr. 1839, Copy [State of Missouri v. Gates et al. for Treason]; Docket Entry, Removal Orders, 11 Apr. 1839, Copy [State of Missouri v. Gates et al. for Treason].  

  38. 38

    The writ of capias for the treason case is not extant, but it is mentioned in Docket Entry, Nolle Prosequi, 10 Dec. 1839 [State of Missouri v. Gates et al. for Treason]; see also Capias, 30 May 1839 [State of Missouri v. JS et al. for Riot].  

  39. 39

    For unknown reasons, when recording the continuance and dismissal in his docket, Wilson listed Thomas Rich, rather than Jacob Gates, as the first defendant. (Docket Entry, Continuance, 14 Aug. 1839 [State of Missouri v. Gates et al. for Treason]; Docket Entry, Nolle Prosequi, 10 Dec. 1839 [State of Missouri v. Gates et al. for Treason].)  

  40. 40

    Docket Entry, Continuance, 17 Aug. 1839 [State of Missouri v. Gates et al. for Treason]; Docket Entry, Continuance, 4 Nov. 1839 [State of Missouri v. Gates et al. for Treason]; Docket Entry, Nolle Prosequi, 5 Aug. 1840 [State of Missouri v. Gates et al. for Treason]; Boone Co. Cir. Ct. Record C, p. [315], Boone County Courthouse, Columbia, MO.