Trial Report, , Hancock Co., IL, [8–26 July 1843], Extradition of JS for Treason (Nauvoo, IL, Municipal Court 1843); “Municipal Court of the City of Nauvoo, Illinois” and “Trial of Joseph Smith,” Nauvoo Neighbor, 12 July 1843, –; 19 July 1843, ; 26 July 1843, –.
“Municipal Court of the City of Nauvoo, Illinois,” Nauvoo Neighbor, 12 July 1843, –.
MUNICIPAL COURT OF THE CITY OF , ILLINOIS.
Second day of special term, July 1st., 1843.
Before Aldermen , Acting Chief Justice; and Aldermen , , , , and , Associate Justices; presiding.
Messrs. , & , Counsel for Smith.
Mr. Mason, Counsel for .
This case came before the court upon a return to a writ of habeas corpus, which was issued by this court, on the 30th of June, 1843, upon the petition of Joseph Smith, Senior, as follows:
State of Illinois,)
City of .)
To the Honorable the Municipal Court, of the City of , Hancock County, and State of Illinois:—
Your petitioner, Joseph Smith, Senior, who has been arrested by, and under the name of Joseph Smith, Junior, states on oath, that he is now detained as a prisoner, and in the custody of , in the said city of , and state of , who claims to be the agent of the state of , and that your petitioner was arrested by one , by virtue of what purports to be a warrant issued by His Excellency, , Governor of the state of , in the county of , and state of , and by said , your petitioner was delivered into the custody of said , at and within the county of , aforesaid; that said supposed warrant, so issued by His Excellency, , Governor as aforesaid, and the arrest thereupon, and the imprisonment consequent thereupon, by said , and afterward by said , is illegal, and in violation of law, and without the authority of law, as he is informed and verily be lieves, for the following, besides other reasons, to wit:
1st. The said supposed warrant so issued by the said of the State of , as aforesaid, does not confer any authority to arrest your petitioner, for that it commands the officers therein named, to arrest one Joseph Smith, Junior, whereas, the name of your petitioner is Joseph Smith, Senior, and your petitioner avers that he is not known and reputed by the name of Joseph Smith, Junior.
2nd. The said supposed warrant is defective and void, for that it does not recite that the Joseph Smith, Junior, mentioned therein, has been demanded by the of the State of , of the of the State of .
3rd. Said supposed warrant, is defective and void, for that it does not state that said Joseph Smith, Junior, therein named, has been indicted or that any other legal accusation of any offence has been legally preferred, and is as pending against him in the said State of .
4th. It is defective and void, for that it does not show that any legal foundation was furnished by the of the State of , upon which to issue the same; and your petitioner avers that the same was issued without due authority of law.
5th. Said supposed warrant is in other respects defective and void.
6th. The said , has no authority to detain your petitioner in custody; for that he is not an officer of the State of , nor is he legally authorized by the said of the State of , or otherwise, as the agent of the State of , in the State of , or in any other character and capacity to imprison your petitioner within the said State of .
7th. Your petitioner before the making of the said arrest upon which he is now detained and imprisoned, had been arrested for the same cause, and upon a charge for the same offence, for which he is now arrested and imprisoned, by virtue of a warrant issued by the of the said State of , upon a requisition of the Executive authority of the said State of , and was discharged from said arrest and imprisonment by judgement of the Circuit Court of Warren county, at a court holden in the said county of Warren, in or about the month of June, A. D. 1841, in such manner as not to be liable to the said second arrest for the same cause.
8th. Your petitioner is not a fugitive from justice, and has not fled from the justice of the said State of , and he is not guilty and has not been guilty of treason in or against the said State of .
9th. Your petitioner was not, and has not been within the limits of the said State of , for more than four years next, before the making of said arrest and imprisonment whereby he is now detained, nor for or during four years before any indictment or other legal accusation was preferred against him.
10th. Your petitioner avers that the said supposed warrant, so issued by the said of the said State of , and under color of which your petitioner is now imprisoned, and the document purporting to be an authority to re[c]eive the said Joseph Smith, Junior, are [w]holly defective and insufficient to legally au[t]horize the arrest and imprisonment of your petitioner: Copies of which supposed warrant and the supposed authority from the of the State of are hereunto annexed.
Wherefore, your petitioner prays that a writ of habeas corpus may be awarded, directed to the said , commanding him that he bring your petitioner forthwith and without delay, before this honorable court, together with the causes of his caption and detention, in order that your petitioner may be dealt with according to law; and your petitioner as in duty bound, will ever pray.
JOSEPH SMITH, Sen.
Subscribed and sworn to before me, this 30th day of June, A. D. 1843, at the City of , Illinois.
Clerk of the Municipal Court, of the City of .
STATE OF ILLINOIS,)
City of .)
The People of the State of to the of said , Greeting:
Whereas application has been made before the Municipal Court of said that the body of one Joseph Smith, Senior, of the said city of , (who is styled in the warrant by which he is held in custody, Joseph Smith Junior,) is in the custody of . These are therefore to command the said to safely have the body of the said Joseph Smith Senior, who is styled Joseph Smith Junior, in his custody detained, as it is said, together with the day and cause of his caption and detention, by whatever name the said Joseph Smith Senior may be known or called, before the Municipal Court of said forthwith, to abide such order as the said Court shall make in their behalf: and further, if the said or other person or persons having said Joseph Smith Senior of said city of in custody, shall refuse or neglect to comply with the provisions of this writ, you, the of said , or other person authorized to serve the same, are hereby required to arrest the person or persons so refusing or neglecting to comply as aforesaid, and bring him or them, together with the person or persons in his or their custody, forthwith before the Municipal Court aforesaid, to be dealt with according to law; and herein fail not, and bring this writ with you.
Witness, , Clerk of the Municipal Court at , this 30th day of June in the year of our Lord one thousand eight hundred and forty-three.
I, , the within named, do hereby return this writ, with the body of Joseph Smith, with the following cause of caption and detention, to wit: The within named Joseph Smith was arrested on a warrant issued by the of the State of , by one , a Constable of , in the State of , on the 23d day of June A. D. 1843, a copy of which warrant is hereunto annexed and marked letter B, and delivered over to my custody as directed by said writ. The person of said Smith was, on said 23d of June, in the county of and State of , by the said delivered over to my custody, and that I received and detained the said Smith in my custody by virtue of a certain warrant of attorney issued by the of the State of , a copy of which is hereto annexed, and marked letter B, directing me to receive the said Smith, and convey him to and deliver him to the sheriff of in the State of , and that the within detention referred to, is the same referred to, and none other.
, June 30th, A. D. 1843.
City of .)
Know ye that I, , Governor of the State of , having full trust and confidence in the integrity and abilities of , do hereby constitute and appoint him as the agent of the said State of , to proceed to the State of , for the purpose of receiving from the proper auhorities of that , one Joseph Smith, Jr., charged with treason by him committed against the State of , and as having fled from justice to the State of , and I do hereby authorise and direct said to convey said Joseph Smith Jr. from the State of , and deliver him to the custody of the sheriff of in the State of .
In testimony whereof, I have hereunto set my hand, and caused to be affixed the great seal of the State of .
Done at the City of this 13th day of June in the year of our Lord one thousand eight hundred and forty-three.
By the Governor,
James L. Minor, Secretary of State.
, Governor of the State of , to all Sheriffs and Constables of any county of the , and to , of the county of , greeting:
Whereas it has been made known to me by the Executive authority of the State of , that one Joseph Smith, Junior, stands charged with the crime of treason, against the State of , and alleged that Joseph Smith Junior has fled from the justice of the said State of , and taken refuge in the State of ,
Now therefore I, , Governor of the State of , pursuant to the Constitution and Laws of the and of this , do hereby command you to arrest and apprehend the said Joseph Smith, Junior, if he be found within the limits of the aforesaid, and cause him to be safely kept and delivered to the custody of , Esq., who has been duly constituted the agent of the said State of to receive the said fugitive from the justice of said , he paying all fees and charges for the arrest and apprehension of said Joseph Smith, Junior, and make due returns to the Executive department of this of the manner in which this writ may be executed.
In testimony whereof, I have hereunto set my hand and caused the great seal of the to be affixed.
Done at the City of , this 17th day of June, in the year of our Lord one thousand eight hundred and forty-three, and of the Independence of the the sixty-seventh.
By the Governor,
Thompson Campbell, Secretary of State.
The following witnesses were examined, viz: , , , , , and .
sworn. Said that the defendant now in court is his brother, and that his name is not Joseph Smith Junior, but his name is Joseph Smith Senior, and has been for more than two years past. I have been acquainted with him ever since he was born, which was thirty-seven years in December last, and I have not been absent from him at any one time, not even the space of six months since his birth, to my recollection, and have been intimately acquainted with all his sayings, doings, business transactions and movements, as much as any one man could be acquainted with another man’s busines up to the present time, and do know that he has not committed treason against any State in the , by any overt act, or by levying war, or by aiding and abetting, or assisting an enemy in any State in the , and that the said Joseph Smith Senior has not committed treason in the State of , nor violated any law or rule of said , I being personally acquainted with the transactions and doings of said Smith whilst he resided in said , which was for about six months in the year 1838; I being also a resident in said during the same period of time, and I do know that said Joseph Smith Senior never was subject to military duty in any State, neither was he in the State of , he being exempt by the amputation or extraction of a bone from his leg, and by his having a license to preach the Gospel, or being in other words a minister of the Gospel, and I do know that said Smith never bore arms, as a military man, in any capacity whatever, whilst in the State of , or previous to that time; neither has he given any orders or assumed any command in any capacity whatever; but I do know that whilst he was in the State of , that the People commonly called Mormons, were threatened with violence and extermination, and on or about the first Monday in August 1838, at the election at , the county seat in ; the citizens who were commonly called Mormons were forbidden to exercise the rights of franchise, and from that unhallowed circumstance an affray commenced, and a fight ensued among the citizens of that place, and from that time a mob commenced gathering in that threatening the extermination of the Mormons; the said Smith and myself upon hearing that mobs were collecting together, and that they had also murdered two of the citizens of the same place, and would not suffer them to be buried; the said Smith and myself went over to to learn the particulars of the affray, but upon our arrival at , we learned that none were killed but several were wounded—we tarried all night at Col. ’s, the next morning the weather being very warm and having been very dry for some time previously, the springs and wells in that region were dried up; on mounting our horses to return, we rode up to ’s, who was then an acting Justice of the Peace, to obtain some water for ourselves and horses; some few of the citizens accompanied us there, and after obtaining the refreshment of water, was asked by said Joseph Smith Senior, if he would use his influence to see that the laws were faithfully executed and to put down mob violence, and he gave us a paper, written by his own hand, stating that he would do so. He also requested him to call together the most influential men of the on the next day that we might have an interview with them; to this he acquiesced, and accordingly the next day they assembled at the house of and entered into a mutual covenant of peace, to put down mob violence and to protect each other in the enjoyment of their rights: after this we all parted with the best of feelings and each man returned to his own home. This mutual agreement of peace however did not last long; for but a few days afterwards the mob began to collect again until several hundreds rendezvoused at , a few miles distant from . They immediately commenced making aggressions upon the citizens called Mormons, taking away their hogs and cattle, and threatening them with extermination or utter extinction; saying that they had a cannon and there should be no compromise only at its mouth: frequently taking men, women and children prisoners, whipping them and lacerating their bodies with hickory withes, and tying them to trees and depriving them of food until they were compelled to gnaw the bark from the trees to which they were bound in order to sustain life; treating them in the most cruel manner they could invent or think of, and doing every thing they could to excite the indignation of the Mormon people to rescue them, in order that they might make that a pretext of an accusation for the breach of the law and that they might the better excite the prejudice of the populace and thereby get aid and assistance to carry out their hellish purposes of extermination. Immediately on the authentication of these facts, messengers were despatched from to , Jud[ge] of the fifth judicial district of the State of , and also to , [Com]mander-in-chief of that division, and , giving them information of the existing facts, and demanding immediate assistance. returned with the messengers and went immediately to and from thence to , and he found the facts were true as reported to him;—that the citizens of that were assembled together in a hostile attitude to the amount of two or three hundred men, threatening the utter extermination of the Mormons, he immediately returned to and ordered out a sufficient military force to quell the mob. Immediately after they were dispersed and the army returned; the mob commenced collecting again soon after: we again applied for military aid, when came out with a force of sixty armed men to ; but they were in such a state of insubordination that he said he could not control them, and it was thought advisable by , and others that they should return home; ordered to call out the militia of and defend the against the mob, for said he, you have great reason to be alarmed, for he said from the Platte country had come down with 200 armed men and had taken up their station at Hunter’s mill, a place distant about 17 or 18 miles north west of the town of , and also that an armed force had collected again at , in , consisting of several hundred men, and that another armed force had collected at , in Carroll county, about 50 miles south east of , where about 70 families of the Mormon people had settled upon the bank of the at a little town called . Immediately a messenger, whilst he was yet talking, came in from , stating that three or four hundred men had assembled together at that place armed cap-a-pie, and that they threatened the utter extinction of the citizens of that place if they did not leave the place immediately, and that they had also surrounded the and cut off all supplies of food, so that many of them were suffering with hunger. seemed to be very much alarmed, and appeared to be willing to do all he could to assist, and to relieve the sufferings of the Mormon people; he advised that a petition be immediately got up and sent to the . A petition was accordingly prepared and a messenger despatched immediately to the , and another petition was sent to . The Mormon people throughout the country were in a great state of alarm, and also in great distress; they saw themselves completely surrounded with armed forces on the north and on the north west and on the south, and also , who was a Methodist preacher, and who was then a captain over a militia company of 50 soldiers, but who had added to his number out of the surrounding counties about a hundred more, which made his force about 150 strong, was stationed at , sending out his scouting parties, taking men, women and children prisoners, driving off cattle, hogs and horses, entering into every house on Log and Long Creeks, rifling their houses of their most precious articles, such as money, bedding, and clothing, taking all their old muskets and their rifles or military implements, threatening the people with instant death if they did not deliver up all their precious things, and enter into a covenant to leave the or go into the city of by the next morning, saying that “they calculated to drive the people into , and then drive them to hell.” also was doing the same on the north west side of ; and , a Presbyterian minister, was the leader of the mob in ; and a very noted man of the same society was the leader of the mob in Carroll county; and they were also sending out their scouting parties, robbing and pillaging houses, driving away hogs, horses and cattle, taking men, women and children and carrying them off, threatening their lives and subjecting them to all manner of abuses that they could invent or think of.
Under this state of alarm, excitement and distress, the messengers returned from the and from the other authorities, bringing the fatal news, that the Mormons could have no assistance. They stated that the said that “the Mormons had got into a difficulty with the citizens, and they might fight it out for all what he cared, He could not render them any assistance.”
The people of were obliged to leave their homes and go into ; but did not until after many of them had starved to death for want of proper sustenance, and several died on the road there, and were buried by the way side, without a coffin or a funeral ceremony, and the distress, sufferings, and privations of the people cannot be expressed. All the scattered families of the Mormon people, in all the counties except , were driven into , with but few exceptions.
This only increased their distress, for many thousands who were driven there, had no habitations or houses to shelter them, and were huddled together, some in tents and others under blankets, while others had no shelter from the inclemency of the weather. Nearly two months the people had been in this awful state of consternation, many of them had been killed, whilst others had been whipped untill they had to swathe up their bowels to prevent them from falling out. About this time, came out from , Ray county, who was one of the commissioned officers who was sent out to , and I myself and my brother Joseph Smith Senior, went out at the same time. On the evening that arrived at , my brother, the late ’s came in to ’s about eleven o’clock at night, bringing her two children along with her, one about two years and a half old, the other a babe in her arms. She came in on foot, a distance of three miles, and waded , and the water was then about waist deep, and the snow about 3 inches deep. She stated that a party of the mob, a gang of ruffians, had turned her out of doors, had taken her household goods and had burnt up her house, and she had escaped by the skin of her teeth.— Her at that time was in , and sh[e] was living alone. This cruel transaction excited the feelings of the people in , especially , and he asked , in my hearing, how long we had got to suffer such base violence? said he did not know how long. then asked him what should be done? told him “he should take a company of men, well armed, and go and disperse the mob wherever he should find any collected together, and take away their arms:” did so precisely, according to the orders of . And my brother Joseph Smith Sen. made no words about it.— And after had dispersed the mob and put a stop to their burning houses belonging to the Mormon people and turning women and children out of doors, which they had done up to that time to the amount of 8 or 10 houses which were consumed to ashes—after being cut short in their intended designs, the mob started up a new plan. They went to work and moved their families out of the and set fire to their houses, and not being able to incense the Mormons to commit crimes; they had recourse to this stratagem to set their houses on fire and send runners into all the counties adjacent, to declare to the people that the Mormons had burnt up their houses and destroyed their fields, and if the people would not believe them, they would tell them to go and see if what they had said was not true. Many people came to see, they saw the houses burning, and being filled with prejudice, they could not be made to believe but that the Mormons set them on fire, which deed was most diabolical and of the blackest kind, for indeed the Mormons did not set them on fire, nor meddle with their houses or their fields. And the houses that were burnt, together with the pre-emption rights, and the corn in the fields, had all been previously purchased by the Mormons of the people and paid for in money and with waggons and horses and with other property, about two weeks before; but they had not taken possession of the premises; but this wicked transaction was for the purpose of clandestinely exciting the minds of a prejudiced populace and the Executive, that they might get an order, that they could the more easily carry out their hellish purposes, in expulsion or extermination or utter extinction of the Mormon people. After witnessing the distressed situation of the people in , my brother Joseph Smith Senior and myself returned back to the city of , and immediately despatched a messenger, with written documents, to , stating the facts as they did then exist, praying for assistance if possible, and requesting the editor of the “Far West” to insert the same in his newspaper, but he utterly refused to do so. We still believed that we should get assistance from the , and again petitioned him, praying for assistance, setting forth our distressed situation; and in the mean time the presiding of the County Court issued orders—upon affidavits made to him by the citizens—to the of the , to order out the Militia of the to stand in constant readiness, night and day, to prevent the citizens from being massacred, which fearful situation they were exposed to every moment. Every thing was very portentious and alarming. Notwithstanding all this, there was a ray of hope yet existing in the minds of the people that the would render us assistance; and whilst the people were waiting anxiously for deliverance—men women and children frightened, praying and weeping—we beheld at a distance, crossing the prairies and approaching the , a large army in military array, brandishing their glittering swords in the sunshine, and we could not but feel joyful for a moment, thinking that probably the had sent an armed force to our relief, notwithstanding the awful forebodings that pervaded our breasts. But to our great surprise, when the army arrived they came up and formed a line in double file in one half mile on the east of the city of , and despatched three messengers with a white flag to come to the . They were met by with a few other individuals, whose names I do not now recollect. I was myself standing close by, and could very distinctly hear every word they said. Being filled with anxiety, I rushed forward to the spot, expecting to hear good news—but alas! and heart-thrilling to every soul that heard them—they demanded three persons to be brought out of the before they should massacre the rest. The names of the persons they demanded, were , and his wife. Immediately the three persons were brought forth to hold an interview with the officers who had made the demand, and the officers told them they had now a chance to save their lives, for they calculated to destroy the people and lay the in ashes. They replied to the officers, and said, “If the people must be destroyed, and the burned to ashes, they would remain in the and die with them.” The officers immediately returned, and the army retreated and encamped about a mile and a half from the . A was immediately despatched with a white flag from the of the Militia of , requesting an interview with and ; but as the approached the camp, he was shot at by , the Methodist preacher. The name of the messanger was , who is now Brigadier [General in] the . However, he gained permission to see ; he also requested an interview with . said that had been dismounted by a special order of the a few miles back, and had been sent back to , Clay county. He also stated that the reason was, that he (,) was too merciful unto the Mormons, and would not let him have the command, but had given it to , who was from , and whose heart had become hardened by his former acts of rapine and bloodshed, he being one of the leaders in murdering, driving, plundering and burning some two or three hundred houses belonging to the Mormon people in that in the years 1833 and 1834.
requested to spare the people, and not suffer them to be massacred until the next morning, it then being evening. He coolly agreed that he would not, and also said that “he had not as yet received the ’s order, but expected it every hour, and should not make any further move until he had received it; but he would not make any promises so far as regarded ’s army.” he having arrived a few minutes previously, and joined the main body of the army; he knowing well at what hour to form a junction with the main body. then returned to the , giving this information.— The immediately despatched a second messenger with a white flag, to request another interview with , in order to [t]ouch his sympathy and compassion, and if it were possible, for him to use his best endeavors to preserve the lives of the people. On the return of this messenger, we learned that several persons had been killed by some of the soldiers who were under the command of . One Mr. Carey had his brains knocked out by the britch of a gun, and he lay bleeding several hours, but his family were not permitted to approach him, nor any one else allowed to administer relief to him whilst he lay upon the ground, in the agonies of death. Mr. Carey had just arrived in the country, from the State of , only a few hours previous to the arrival of the army. He had a family, consisting of a wife and several small children. He was buried by , who is now the senior warden of the Nauvoo Lodge. Another man, of the name of , was knocked on the head at the same time, and his skull laid bare the width of a man’s hand, and he lay, to all appearance, in the agonies of death for several hours; but by the permission of , his friends brough him out of the camp, and with good nursing he slowly recovered, and is now living. There was another man, whose name is Powell, who was beat on the head with the britch of a gun until his skull was fractured and his brains run out in two or three places. He is now alive, and resides in this , but has lost the use of his senses. Several persons of his family were also left for dead, but have since recovered. These acts of barbarity were also committed by the soldiers under the command of , previous to having received the ’s order of extermination.
It was on the evening of the 30th of October, according to the best of my recollection, that the army arrived at , the sun about half an hour high. In a few moments afterwards, arrived with his army, and formed a junction. This had been stationed at Hunter’s mills for about two months previous to that time—committing depredations upon the inhabitants—capturing men, women and children, and carrying them off as prisoners, lacerating their bodies with hickory withes. The army of “” were painted like Indians, some of them were more conspicuous than were others, designated by red spots, and he, also, was painted in a similar manner, with red spots marked on his face, and styled himself the “Delaware Chief.” They would whoop and hollow and yell as nearly like Indians as they could, and continued to do so all that night. In the morning early, the of Militia sent a messenger into the camp with a white flag, to have another interview with .— On his return, he informed us that the s order had arrived. said that “the order of the was, to exterminate the Mormons by God, but he would be damned if he obeyed that order, but might do what he pleased.” We immediately learned from that “the ’s order that had arrived was only a copy of the original, and that the original order was in the hands of , who was on his way to , with an additional army of six thousand men.” Immediately after this, there came into the a messenger from , bringing the intelligence of an awful massacre of the people who were residing in that place, and that a force of two or three hundred, detached from the main body of the army, under the superior command [p. ]