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Minutes and Testimonies, 12–29 November 1838, Copy and Letter [State of Missouri v. Gates et al. for Treason] Minutes and Testimonies, 12–29 November 1838, Copy [State of Missouri v. Gates et al. for Treason] Document Containing the Correspondence, Excerpt, 1841 [State of Missouri v. Gates et al. for Treason] Document Showing the Testimony, 1841 [State of Missouri v. Gates et al. for Treason] Affidavit, circa 25 January 1839 [State of Missouri v. Gates et al. for Treason] Memorial to the Missouri Legislature, 24 January 1839 [State of Missouri v. Gates et al. for Treason] Petition to George O. Tompkins, between 9 and 15 March 1839 [State of Missouri v. Gates et al. for Treason]

Memorial to the Missouri Legislature, 24 January 1839 [State of Missouri v. Gates et al. for Treason]

Source Note

[JS and others], Memorial, , Clay Co., MO, to Missouri legislature, , Cole Co., MO, 24 Jan. 1839. Featured version copied [between 27 June and 30 Oct. 1839] in JS Letterbook 2, pp. 66–67; handwriting of ; JS Collection, CHL. For more complete source information, see the source note for JS Letterbook 2.

Historical Introduction

On 24 January 1839, JS and his fellow prisoners in the composed a memorial to the legislature, requesting a change of venue for their impending trials. Nearly two months had passed since Judge of the fifth judicial circuit ruled there was probable cause to believe that JS, , , , and had committed treason against the state of Missouri in . King also ruled there was probable cause to believe that had committed the same offense in . The 24 January memorial was the second one the prisoners wrote to the legislature that month. Although the first memorial is apparently not extant, the second one evidently builds upon arguments presented in the first memorial. The second memorial alleges that two obstacles impeded the prisoners from receiving a fair trial within the fifth judicial circuit. First, the memorialists, as they called themselves, argued that the recent conflict had a significant impact on the “upper Counties”—those counties within the fifth judicial circuit—rendering the task of finding an impartial jury essentially impossible. Daviess County, where the trial for JS, Hyrum Smith, Wight, McRae, and Baldwin was to be held, had been a seedbed for anti-Mormon sentiment since 1837, and the antagonism had only grown stronger in the wake of the 1838 conflict. in Caldwell County, where Rigdon was to be tried, were leaving the state and rapidly being replaced by new arrivals, many of whom were hostile to the Saints.
Second, the memorialists argued that , the presiding officer of the fifth judicial circuit, was antagonistic toward the Latter-day Saints and had been since the 1833 conflict between church members and anti-Mormon vigilantes in . The prisoners contended that King’s public statements during the 1838 crisis and its aftermath demonstrated his bias against the Saints. JS later wrote that during the November 1838 hearing, the judge had been motivated by “shear prejudice and the Spirit of persecution and malice and prepossision against him [JS] on account of his religeon.”
law permitted a change of venue “to the circuit court of another county”—presumably within the same judicial circuit—when “the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be held therein.” For JS and his fellow prisoners, the other counties in the fifth judicial circuit were hardly better options than and counties. For the prisoners’ trials to be moved out of the fifth circuit, either the Missouri legislature would need to amend the law or the defense would need to show that the presiding judge had a conflict of interest.
The prisoners, likely with the assistance of their attorney, , wrote the memorial featured here on 24 January 1839. For reasons that remain unclear, none of the Latter-day Saints’ names appear in the document, either in the body of the document or as signatories. The first two paragraphs refer to JS and his companions in the third-person plural. Beginning with the third paragraph and continuing for the remainder of the document, the memorial is written in first-person plural, directly representing the memorialists’ perspective. The initial portion may have been written by Burnett, who visited the jail several times in January 1839 and who added a postscript to the memorial. It is also possible that the prisoners wrote the memorial in multiple stages and neglected to maintain a consistent voice throughout. In the postscript, Burnett requested that representative James M. Hughes, whom the memorial was addressed to, present the memorial to the legislature.
It is unknown whether the memorial was transmitted to Hughes, who began a leave of absence from the legislative session on 28 January. ’s other representative, , presumably assumed the task of representing the prisoners’ interests before the legislature. Although it is unclear whether Atchison formally submitted the memorial to the house of representatives, he did introduce a bill on 25 January that amended the existing statute to permit a change of venue “from one circuit to another, when the people in the circuit, where the indictment is found, are so prejudiced against the defendant that a fair trial cannot be had.” Both the house and the senate passed the bill—apparently without controversy—and signed it into law on 13 February 1839. The original memorial is apparently not extant. inscribed a copy, using the original or a retained copy, in JS Letterbook 2 sometime between 27 June and 30 October 1839.

Footnotes

  1. [1]

    A memorial is “a petition or representation made by one or more individuals to a legislative body.” (“Memorial,” in Bouvier, Law Dictionary, 2:111; see also Missouri Constitution of 1820, art. 13, sec. 3.)

    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.

  2. [2]

    Ruling, Richmond, MO, Nov. 1838, p. [124], State of Missouri v. JS et al. for Treason and Other Crimes (Mo. 5th Jud. Cir. 1838), in State of Missouri, “Evidence.”

  3. [3]

    When the prisoners wrote the memorial, the fifth judicial circuit included Daviess, Livingston, Carroll, Ray, Clay, Clinton, and Caldwell counties. (An Act to Establish Judicial Circuits, and to Prescribe the Times and Places of Holding Courts [21 Jan. 1837], Laws of the State of Missouri [1836–1837], p. 56, sec. 12.)

    Laws of the State of Missouri, Passed at the First Session of the Ninth General Assembly, Begun and Held at the City of Jefferson, on Monday, the Twenty-First Day of November, in the Year of Our Lord One Thousand Eight Hundred and Thirty-Six. 2nd ed. St. Louis: Chambers and Knapp, 1841.

  4. [4]

    Anderson, “Clarifications of Boggs’s Order,” 30–42.

    Anderson, Richard Lloyd. “Clarifications of Boggs’s ‘Order’ and Joseph Smith’s Constitutionalism.” In Regional Studies in Latter-day Saint Church History: Missouri, edited by Arnold K. Garr and Clark V. Johnson, 27–83. Provo, UT: Department of Church History and Doctrine, Brigham Young University, 1994.

  5. [5]

    See Walker, “Mormon Land Rights,” 35–46.

    Walker, Jeffrey N. “Mormon Land Rights in Caldwell and Daviess Counties and the Mormon Conflict of 1838: New Findings and New Understandings.” BYU Studies 47, no. 1 (2008): 4–55.

  6. [6]

    Petition to George Tompkins, between 9 and 15 Mar. 1839.

  7. [7]

    An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], pp. 486–487, art. 5, sec. 16. Many of the anti-Mormon vigilantes who participated in the 1838 conflict hailed from counties within the fifth judicial circuit. (See JS, Journal, 2 Sept. 1838.)

    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.

  8. [8]

    An Act to Regulate Proceedings in Criminal Cases [21 Mar. 1835], Revised Statutes of the State of Missouri [1835], p. 486, art. 5, sec. 15.

    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]

    It is possible that the prisoners named themselves in the memorial written a few days earlier and saw no need to include their names in the 24 January memorial.

  10. [10]

    History of the Reorganized Church, 2:315.

    The History of the Reorganized Church of Jesus Christ of Latter Day Saints. 8 vols. Independence, MO: Herald Publishing House, 1896–1976.

  11. [11]

    James Madison Hughes (1809–1861) was an attorney and Clay County representative in 1839. He represented Missouri in the United States Congress from 1843 to 1845. (Biographical Directory of the United States Congress, 1774–2005, 1296.)

    Biographical Directory of the United States Congress, 1774–2005, the Continental Congress, September 5, 1774, to October 21, 1788, and the Congress of the United States, from the First through the One Hundred Eighth Congresses, March 4, 1789, to January 3, 2005, inclusive. Edited by Andrew R. Dodge and Betty K. Koed. Washington DC: U.S. Government Printing Office, 2005.

  12. [12]

    The leave of absence was granted on 25 January 1839. (Journal, of the House of Representatives, of the State of Missouri, 25 Jan. 1839, 298.)

    Journal, of the House of Representatives, of the State of Missouri, 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 City, MO: Calvin Gunn, 1839.

  13. [13]

    Atchison may not have submitted the memorial because of lawmakers’ ongoing debates about whether to appoint a committee to investigate the causes of the conflict. (See Gentry and Compton, Fire and Sword, 485–496.)

    Gentry, Leland Homer, and Todd M. Compton. Fire and Sword: A History of the Latter-day Saints in Northern Missouri, 1836–39. Salt Lake City: Greg Kofford Books, 2011.

  14. [14]

    Journal, of the House of Representatives, of the State of Missouri, 25 Jan. 1839, 289; An Act to Amend an Act concerning Criminal Proceedings [13 Feb. 1839], Laws of the State of Missouri [1839], p. 98.

    Journal, of the House of Representatives, of the State of Missouri, 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 City, MO: Calvin Gunn, 1839.

    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.

  15. [15]

    Journal, of the House of Representatives, of the State of Missouri, 26 and 28 Jan. 1839; 13 Feb. 1839, 305, 320, 321–322, 466. Although the prisoners ultimately obtained a change of venue in April 1839, it was granted on different procedural grounds than in the February 1839 act. (See Historical Introduction to Promissory Note to John Brassfield, 16 Apr. 1839.)

    Journal, of the House of Representatives, of the State of Missouri, 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 City, MO: Calvin Gunn, 1839.

  16. [16]

    Mulholland copied JS’s 27 June 1839 letter to Jacob Stollings on page 50 of JS Letterbook 2, making that the earliest possible copying date for the documents that followed, including the 24 January 1839 memorial.

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. History, 1838–1856, volume C-1 [2 November 1838–31 July 1842] “History of Joseph Smith” Memorial to the Missouri Legislature, 24 January 1839 [ State of Missouri v. Gates et al. for Treason ] Letterbook 2

Page 67

obstacle which we candidly consider are of the most weighty, is the feeling which we believe is entertained by the Hon, against us, and his Consequent incapacity to do us impartial justice. It is from no disposition to speak disrespectfully of that high officer that we lay before your Hon. Body the facts we do, but simply that the Legislature may be apprised of our real Condition. We look upon as like all other mere men, liable to be influenced by his feelings, his prejudices, and his previously formed opinions
We consider his reputation as being partially if not entirely committed against us.
He has written much upon the subject of our late difficulties in which he has placed us in the wrong— These letters have been published to the world He has also presided at an excited public meeting as chairman and no doubt sanctioned all the proceedings. We do not complain of the citizens who held that meeting. They were entitled to that privilege.
But for the Judge before whom the very men were to be tried for a capital offense, to participate in an expression of condemnation of these same individuals is to us at least apparently wrong, and we cannot think that we should after such a course on the part of the Judge have the same chance of a fair and impartial trial— as all admit we ought to have.
We believe that the foundation of the feeling against us which we have reason to think entertains, may be traced to the unfortunate troubles which occurred in some few years ago. In a battle between the mormons and a portion of the Citizens of that , , the brotherinlaw of , was killed. It is natural that the should have some feeling against us, whether we were right or wrong in that controversy. We mention these facts not to disparage — We believe that from the relation he bears to us, he would himself prefer that our trials should be had in a different circuit, and before a different court,
Many other reasons and facts we might mention but we forebear.
, Jan 24th 1839 L.
James M. Hughes Esqr
Mem, House Rep,
Mo—
Will you be so good as to present this to the house. The Community here would, I believe have no objections for the trial of these men being transferred to .
J M. H.
[p. 67]
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Related Case Documents

Documents Related to State of Missouri v. Gates et al. for Treason

Editorial Title
Memorial to the Missouri Legislature, 24 January 1839 [State of Missouri v. Gates et al. for Treason]
ID #
424
Total Pages
2
Print Volume Location
JSP, D6:318–323
Handwriting on This Page
  • James Mulholland

Footnotes

  1. [3]

    On 24 October 1838, King sent Boggs a detailed account of the Saints’ Daviess County expedition, which culminated with the 18 October raids of Gallatin and Millport. “Until lately I thought the Mormons wer disposed to act only on the defensive,” King stated, “but their recent conduct shows that they are the aggressors, & that they intend to take the law into their own hands.” The judge asked Boggs to intervene. “The country is in great commotion and I can assure you that either with or without authority, something will shortly have to be done.” King’s report was probably based on statements made by Latter-day Saint dissenters and other Missouri residents who claimed to have witnessed the Saints’ activities.a Although the memorial references multiple letters, only King’s 24 October 1838 letter seems to have circulated in the press. The Missouri Watchman, published in Jefferson City, the state capital, printed King’s letter on 29 October, and it was widely discussed and reproduced thereafter.b

    (aAustin A. King, Richmond, MO, to Lilburn W. Boggs, 24 Oct. 1838, copy; Charles R. Morehead et al., Statement, Richmond, MO, 24 Oct. 1838, copy; Thomas B. Marsh and Orson Hyde, Affidavit, Richmond, MO, 24 Oct. 1838, copy, Mormon War Papers, MSA. b“Mormon Troubles,” Adams Sentinel [Gettysburg, PA], 19 Nov. 1838, [3]; “Letter from Judge King,” Missouri Republican [St. Louis], 2 Nov. 1838, [2]; “Letter from Jud[g]e King,” Missouri Argus [St. Louis], 8 Nov. 1838, [1].)

    Mormon War Papers, 1838–1841. MSA.

    Adams Sentinel. Gettysburg, PA. 1800–1867.

    Missouri Republican. St. Louis. 1822–1919.

    Missouri Argus. St. Louis. 1835–1841.

  2. [4]

    On 26 December 1838, King presided at a public meeting in Ray County, where citizens condemned a letter that Clay County resident Michael Arthur wrote to his state legislators. Arthur, who was sympathetic to the Saints, criticized “devils in the form of human beings inhabiting Davis, Livingston and a part of Ray Counties” who were harassing the defenseless Saints in Far West. Arthur hoped that the legislature would authorize the formation of a small guard, numbering about twenty-five men, to protect Caldwell County from marauders. King opposed Arthur’s proposal on the grounds that such a guard would undermine civil authority. Those at the public meeting defended the actions of Ray County citizens and claimed the governor’s expulsion order was necessary to maintain public order. (“Public Sentiment,” Jeffersonian Republican [Jefferson City, MO], 19 Jan. 1839, [1]; Michael Arthur, Liberty, MO, to “Respected Friends,” 29 Nov. 1838, copy; Austin A. King, Richmond, MO, to Lilburn W. Boggs, 23 Dec. 1838, copy, Mormon War Papers, MSA.)

    Jeffersonian Republican. Jefferson City, MO. 1831–1844.

    Mormon War Papers, 1838–1841. MSA.

  3. [5]

    In early January 1839, the Missouri legislature debated the propriety of King chairing an “anti-Mormon meeting,” as the Daily Missouri Republican described it, when he was scheduled to preside at the prisoners’ trials. Although a few legislators shared the Republican’s disapproval, the debate “ended where it began, without any result.” (News Item, Daily Missouri Republican [St. Louis], 8 Jan. 1839, [2]; “Letter from the Editor,” Daily Missouri Republican, 10 Jan. 1839, [2].)

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

  4. [6]

    Breazeale married Austin A. King’s sister, Amanda, in 1827 and was killed on 4 November 1833 in a skirmish between Latter-day Saints and anti-Mormon vigilantes intent on expelling church members from Jackson County. (Roane Co., TN, Marriage Records, 1801–1962, Dec. 1801–Sept. 1838, p. 7, microfilm 560,087, U.S. and Canada Record Collection, FHL; “The Outrage in Jackson County,” The Evening and the Morning Star, Dec. 1833, 118.)

    U.S. and Canada Record Collection. FHL.

    Evening and Morning Star. Edited reprint of The Evening and the Morning Star. Kirtland, OH. Jan. 1835–Oct. 1836.

  5. [7]

    Mulholland may have written the first “L” of “Liberty Jail” in the middle of the page before deciding to inscribe the prisoners’ location on the left side of the page.

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