Declaration, circa 6 March 1839 [JS v. McLellin]
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Source Note
John A. Gordon on behalf of JS, Declaration, to Clay County Circuit Court, , Clay Co., MO, [ca. 6 Mar.] 1839, JS v. McLellin (Clay Co. Cir. Ct. 1839); handwriting probably of John A. Gordon; signature of John A. Gordon; two pages; Clay County Archives and Historical Library, Liberty, Missouri. Includes dockets.Bifolium measuring 12½ × 7⅝ inches (32 × 19 cm), with thirty-five printed lines (now very faded) per page. The document was folded for filing. The verso of the second leaf includes several dockets in unidentified handwriting: “Joseph Smith Jr. | vs. | William E. McCLeland | Trespass on the case | Damage $500 | The clerk will issue | process”; “Sheriff fee $1.00 | 3rd Day”; “22 March”; and “1839.” An “8”—likely an archival marking—is stamped on the verso. At some point, the leaves became separated.The declaration remained in the possession of the Clay County Circuit Court from March 1839 until circa 1979, when it was transferred to the Clay County Archives and Historical Library.
Footnotes
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See Clay County Archives and Historical Library, “About Us.”
Clay County Archives and Historical Library. “About Us.” Clay County Archives and Historical Library, Liberty, MO. Accessed 22 June 2016. http://www.claycountyarchives .org/index.php/about-us.
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Historical Introduction
In early March 1839, attorney John A. Gordon wrote a declaration on JS’s behalf, initiating a civil lawsuit against in the circuit court in , Missouri. McLellin was one of the original called in 1835; however, in May 1838 he confessed that “he had no confidence in the heads of the ” and that he had stopped “praying and keeping the commandments.” At this time, McLellin gave up his preaching and withdrew from the church. JS’s declaration against McLellin alleges that on 1 September 1838 while in Clay County, McLellin obtained books, fabric, and other goods—worth a total of $500—belonging to JS. Although JS repeatedly asked McLellin to return the materials, the former apostle disposed of the items on 10 September.The details of the situation are unclear. One possible scenario is that the items in question were goods being temporarily stored in —the location of a major landing—prior to being moved to , Missouri. These goods may have been inventory from stores that JS co-owned in Ohio or items purchased elsewhere. However, aside from the March 1839 declaration, no evidence suggests that JS had such goods in Clay County on 1 September 1838.Several sources describe a different scenario, in which ransacked JS’s home in in early November 1838, when the state militia occupied the county and JS was in jail. One observer described McLellin as “the leader of a clan who went about from house to house, plundering the poor saints, and insulting both male and female.” According to , who was living with and the Smith children at the time, McLellin entered JS’s home and stole linen, cashmere, buttons, books, a harness, and various other items; this list aligns with the declaration’s list of stolen goods. Phoebe Babcock Patten, widow of apostle , similarly accused McLellin of “plundering and Robbing” her home after “the surrender of arms” on 1 November. When Patten asked McLellin why he was acting “contrary to law,” he allegedly responded that “there is no law now, but mob law.”The declaration may have been intentionally vague regarding how acquired JS’s goods because of the type of suit that Gordon initiated for JS—a trover—which permitted the plaintiff “to recover the value of personal chattels, wrongfully converted by another to his own use.” JS’s suit may have been a transitory action, which does not require specifying the venue in which the theft occurred. As explained in an influential nineteenth-century legal dictionary, “In a transitory action, the plaintiff may lay the venue in any county he pleases; that is, he may bring suit wherever he may find the defendant, and lay his cause of action to have arisen there, even though the cause of action arose in a foreign jurisdiction.” JS was therefore permitted to bring suit in , where both he and McLellin were living in March 1839. In cases that do not require the venue to be specified, the plaintiff is required to state the time of the event “in general” only. The exact timing is not considered material, which may explain why the declaration states that McLellin acquired JS’s goods on 1 September 1838 rather than in November 1838.Following the required format for declarations, the document names the parties and the court, recites the allegations, identifies the type of suit, and specifies the damages the plaintiff sought. In addition, per legal requirements, the declaration states that JS previously possessed the goods as his property and that allegedly acquired the goods improperly. Also as required by law, the declaration describes how McLellin allegedly converted the goods for his use.Gordon, who practiced law in , may have written the declaration in the upper room of the Clay County , where JS and his fellow prisoners were occasionally permitted to receive visitors. Although Gordon did not date the declaration, he likely composed and submitted it by 6 March 1839, when the clerk of the Clay County Circuit Court issued a summons requiring to appear to answer the charges. At the April 1839 term of the Clay County Circuit Court, McLellin pleaded not guilty and filed a motion requiring JS to post security for the court costs. The court dismissed the suit on 21 August 1839 because JS, who by that time had escaped from custody, did not appear to post the security.See also Introduction to JS v. McLellin.
Footnotes
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1
Although the document does not use the word declaration, when Clay County sheriff Samuel Hadley executed the summons, he referred to the document as a declaration, and it follows the usual format for declarations. Land records show that McLellin purchased property in Caldwell County in late 1837. McLellin’s wife, Emeline Miller McLellin, recalled that the family resided in Caldwell County for only a few months in 1838 before moving to Clay County, where the family had previously resided. The McLellins were apparently in Clay County by June 1838. (Summons, 6 Mar. 1839, JS v. McLellin [Clay Co. Cir. Ct. 1839], Clay County Archives and Historical Library, Liberty, MO; Johnson and Romig, Index to Early Caldwell County, Missouri, Land Records, 121; Porter, “Odyssey of William Earl McLellin,” 323; [William E. McLellin], Editorial, Ensign of Liberty, Mar. 1847, 9.)
Johnson, Clark V., and Ronald E. Romig. An Index to Early Caldwell County, Missouri, Land Records. Rev. ed. Independence, MO: Missouri Mormon Frontier Foundation, 2002.
Porter, Larry C. “The Odyssey of William Earl McLellin: Man of Diversity, 1806–83.” In The Journals of William E. McLellin, 1831–1836, edited by Jan Shipps and John W. Welch, 291–378. Provo, UT: BYU Studies; Urbana: University of Illinois Press, 1994.
Ensign of Liberty. Kirtland, OH. Mar. 1847–Aug. 1849.
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2
JS, Journal, 11 May 1838; Porter, “Odyssey of William Earl McLellin,” 314–324.
Porter, Larry C. “The Odyssey of William Earl McLellin: Man of Diversity, 1806–83.” In The Journals of William E. McLellin, 1831–1836, edited by Jan Shipps and John W. Welch, 291–378. Provo, UT: BYU Studies; Urbana: University of Illinois Press, 1994.
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3
Berrett, Sacred Places, 4:212–213; Woodson, History of Clay County, Missouri, 313. Latter-day Saint William Swartzell noted on 24 May 1838 that the Mormons primarily used the landing near Richmond, Ray County, Missouri, to receive goods. (Swartzell, Mormonism Exposed, 9.)
Berrett, LaMar C., ed. Sacred Places: A Comprehensive Guide to Early LDS Historical Sites. 6 vols. Salt Lake City: Deseret Book, 1999–2007.
Woodson, W. H. History of Clay County, Missouri. Topeka, KS: Historical Publishing, 1920.
Swartzell, William. Mormonism Exposed, Being a Journal of a Residence in Missouri from the 28th of May to the 20th of August, 1838, Together with an Appendix, Containing the Revelation concerning the Golden Bible, with Numerous Extracts from the ‘Book of Covenants,’ &c., &c. Pekin, OH: By the author, 1840.
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4
A May 1837 inventory of a store that JS co-owned in Chester, Ohio, listed items similar to those that McLellin allegedly took, including various types of tools, fabric, and buttons; books on history, geography, arithmetic, and Hebrew grammar; and a polyglot Bible. (Bill of Goods from Rigdon, Smith & Co., 20 May 1837, JS Collection, CHL; see also Bill of Goods from Rigdon, Smith & Co., between 19 and 24 May 1837, JS Office Papers, CHL; and Notes Receivable from Rigdon, Smith & Co., 22 May 1837, in JSP, D5:382–385.)
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Ebenezer Page, Letter to the Editor, Zion’s Reveille, 15 Apr. 1847, 55.
Zion’s Reveille. Voree, Wisconsin Territory. 1846–1847.
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6
James Mulholland et al., Complaint, [Far West, MO], Statements against William E. McLellin et al., CHL.
Statements against William E. McLellin and Others, ca. 1838–1839. CHL.
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Phoebe Babcock Patten et al., Complaint against William E. McLellin, [Far West, MO], 1838, Statements against William E. McLellin et al., CHL; see also Butler, Autobiography, 26.
Statements against William E. McLellin and Others, ca. 1838–1839. CHL.
Butler, John L. Autobiography, ca. 1859. CHL. MS 2952.
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8
“Trover,” in Bouvier, Law Dictionary, 2:454.
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.
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“Action,” in Bouvier, Law Dictionary, 1:53.
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.
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10
“Venue,” in Bouvier, Law Dictionary, 2:467.
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.
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“Declaration,” in Bouvier, Law Dictionary, 1:293.
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.
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12
See “Declaration,” in Bouvier, Law Dictionary, 1:293–294.
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.
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13
See “Trover,” in Bouvier, Law Dictionary, 2:454–455; and Troubat and Haly, Practice in Civil Actions and Proceedings, 2:40–46.
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.
Troubat, Francis J., and William W. Haly. The Practice in Civil Actions and Proceedings, in the Supreme Court of Pennsylvania, and in the District Court and Court of Common Pleas for the City and County of Philadelphia; and Also in the Courts of the United States. 2 vols. Philadelphia: R. H. Small, 1837.
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14
History of Clay and Platte Counties, Missouri, 580; see also Alexander McRae, “Incidents in the History of Joseph Smith,” Deseret News, 2 Nov. 1854, [1].
History of Clay and Platte Counties, Missouri, Written and Compiled from the Most Authentic Official and Private Sources. . . . St. Louis: National Historical Co., 1885.
Deseret News. Salt Lake City. 1850–.
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15
Summons, 6 Mar. 1839, JS v. McLellin (Clay Co. Cir. Ct. 1839), Clay County Archives and Historical Library, Liberty, MO.
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16
Clay Co., MO, Circuit Court Records, 1822–1878, vol. 2, p. [279], 18 Apr. 1839; p. 298, 20 Apr. 1839; p. [315], 21 Aug. 1839, Clay County Archives and Historical Library, Liberty, MO.
Clay County, Missouri, Circuit Court Records, 1822–1878. Vol. 2, 1832–1841. Clay County Archives and Historical Library, Liberty, MO.
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