In 1842, Joseph Smith looked back on the events of his life and said, “Deep water is what I am wont to swim in” (D&C 127:2). This was especially true of his experiences with the law. Starting with his first exposure to the judicial system in 1819, at age thirteen,1 he spent much of his next twenty-five years of life entangled with legal concerns. The Joseph Smith Papers Project team now can count about 220 cases involving Joseph as plaintiff, defendant, witness, or judge. Of those, approximately fifty were criminal cases capable of taking away his liberty, his resources, or, ultimately, his life.2
In revelations to Joseph, exalting promises were coupled with grim premonitions. As early as 1829, he was told, “Be firm in keeping the commandments . . . ; and if you do this, behold I grant unto you eternal life, even if you should be slain” (D&C 5:22), and “Even if they do unto you as they have done unto me, blessed are ye, for ye shall dwell with me in glory” (D&C 6:30). In July 1830, shortly after the organization of the Church, he was told, “Be patient in afflictions, for thou shalt have many; but endure them, for, lo, I am with thee, even unto the end of thy days” (D&C 24:8). At some point during his long and frequent encounters with the law, especially during the last year of his life, it surely occurred to him that his death could result from some use or abuse of the judicial or legal process. Indeed, statements he made near the end of his life suggest that he viewed his imminent death and resulting martyrdom as inevitable.3 In his “final charge” to the Twelve during an extraordinary council meeting held in early spring of 1844, he said, “Brethren, the Lord bids me hasten the work in which we are engaged. . . . Some important Scene is near to take place. It may be that my enemies will kill me, and in case they should, and the Keys and power which rest on me not be imparted to you, they will be lost from the Earth; but if I can only succeed in placing them upon your heads, then let me fall a victim to murderous hands if God will suffer it, and I can go with all pleasure and satisfaction, knowing that my work is done, and the foundation laid on which the kingdom of God is to be reared.” He then rolled onto their shoulders the burden of carrying forth the kingdom and said, “The Lord is going to let me rest a while.”4
The destruction of the Nauvoo Expositor, as approved almost unanimously by the members of the Nauvoo City Council and signed by Mayor Joseph Smith on June 10, 1844, and immediately carried out by city officers, is typically thought to have been the proximate cause of his incarceration and death in Carthage. But matters were not that simple. Many factors contributed to the Prophet’s murder on June 27, 1844. Among these were fear of the Nauvoo Legion’s power; perceived abuses related to powers granted under the Nauvoo Charter; political unrest caused by the rapidly increasing Mormon population in Hancock County, Illinois, and Lee County, Iowa; economic competition with some of the leading Mormon opponents; persisting grudges among some Missourians; rumors distorting the beginnings of the limited practice of plural marriage; criticism of Joseph Smith’s presidential campaign; and the concentration of legislative, judicial, executive, military, and religious power in one man, Joseph Smith.
An additional factor—one that is perhaps less known or understood—was a formal legal charge of treason issued by a judge in Carthage on June 26, opening the door directly to the deaths of the Prophet and his brother Hyrum. Even less known is a series of misdemeanor cases that were raised against Joseph during his last few weeks. This study will briefly review these legal matters, together with a concluding series of posthumous lawsuits for civil damages resulting from the Expositor affair. The purpose of this article is to accurately document and legally analyze each of these court actions, which have never been analyzed in depth and as a group in any previous publication. My thesis is that these legal maneuvers in May and June 1844 were ill-founded and intentionally designed by the organizers of the Nauvoo Expositor mainly for the purpose of placing Joseph Smith’s life in mortal danger in Carthage. This article will also provide background about the men behind the Nauvoo Expositor and show that their actions directly contributed to Joseph’s incarceration and death.
The Storm Clouds Gather
For several years, political, economic, and religious tensions had festered between the old settlers in western Illinois and the Mormons, much as they had in Missouri throughout the previous decade. Many locals around Nauvoo were alarmed by a massive Mormon influx that threatened their political and economic influence. Some desired to drive the Mormons from their state,5 as mobs from western Missouri had done in 1838–39 under the direction of Governor Lilburn W. Boggs.
Certain prominent leaders in Illinois also had grievances. All five men later indicted by a grand jury and tried6 for the murder of Joseph and Hyrum were from Warsaw, a small port town fifteen miles downriver from Nauvoo. All had commanded local militia or vigilante groups and together were called by some of their neighbors “a respectable set of men.”7 One of them, Mark Aldrich, was a Warsaw businessman who had lost money due to competing Mormon enterprises.8 At least one, Levi Williams, was a religious minister. Two more, Jacob Davis and William Grover, were lawyers and politicians who feared the growing concentration of Mormon political power. And Thomas Coke Sharp, publisher of the Warsaw Signal, stoked public passions over that same fear of growing power with his incendiary editorials designed to rally adherents and to sell his newspapers. Sharp also asserted and warned that Joseph considered himself above the law.9 And as had happened in Missouri, more fuel was added to these growing tensions by Mormon dissidents who had left or had been excommunicated from the Church.10 The collective fury of these combined forces was primarily directed against Joseph and Hyrum Smith.11
In Nauvoo, among the leading dissidents were three pairs of brothers, namely the Laws, the Fosters, and the Higbees.12 Except in the case of William Law, no significant biographical work has been written on these men, who associated quite closely with each other in the early 1840s in Nauvoo. While it exceeds the scope and purpose of this study to discuss the lives of these six men in detail, a sketch of their many interactions is required to provide context for their eventual coalition.
William Law and his older brother Wilson (both in their mid-thirties) were Irish natives who converted to the Church in Canada and came to Nauvoo in early November 1839. They rose to civic and ecclesiastical prominence in Nauvoo during the time when most members of the Quorum of the Twelve Apostles were serving missions in Europe.13 In January 1841, Joseph Smith announced he had received a revelation that William Law was to replace Hyrum as his counselor in the First Presidency. Hyrum, in turn, was called to replace Joseph Smith Sr. as the Church Patriarch after his death the previous fall. The revelation included many generous promises to William but also cautioned him that to succeed in this high position, he must trust in the Lord, receive counsel from Joseph Smith, be humble, and act without guile.14 In time, Joseph believed that William failed to comply with these admonitions. William was also seemingly unable to accept doctrines that Joseph was introducing, including plural marriage and the plurality of Gods. The Prophet released him from the First Presidency in January 1844.15
Wilson Law was three years older than his brother William and served with him on the Nauvoo City Council from 1841 to 1843.16 During that time, Wilson was also brigadier general in the Nauvoo Legion and was promoted to major general after the excommunication and boisterous departure of John C. Bennett in May 1842.17
In early 1840, Robert D. Foster and later his brother Charles, both in their thirties, came to Nauvoo from Ohio, after Robert had accompanied Joseph Smith’s entourage to Washington, D.C., in his unsuccessful effort to seek redress from the United States government regarding the atrocities against the Mormons in Missouri. Both Fosters were physicians and, like the Law brothers, immediately became prominent businessmen and land speculators in Nauvoo. Robert was baptized and ordained an elder in 1839, and one month later traveled with Joseph Smith and administered to Sidney Rigdon, who was sick.18 It appears that Charles was never a baptized member of the Church.19
Francis Marion Higbee was one year older than his brother, Chauncey Lawson Higbee, both in their early twenties. They were lawyers and sons of Judge Elias Higbee, Joseph’s close friend and confidant for many years who had also accompanied the Prophet to the nation’s capital in 1839–40. The Higbees had joined the Church in Ohio in 1832, then moved to Missouri as a family the next year and were among the first refugees to arrive at Nauvoo in 1839. Francis had been among the men taken prisoner in Missouri.20 In January 1842, the Prophet admonished Elias and also his sons regarding their lack of diligence and industriousness. However, before long, Chauncey Higbee was excommunicated from the Church on May 24, 1842, for “unchaste and unvirtuous conduct towards certain females.”21 No mention is ever made of Chauncey being readmitted into the Church. Elias died a year and a half later, in June 1843—one year before the death of Joseph Smith.22
From 1840 to 1844, these men became very well acquainted with each other, with the Church, and with governmental operations and political powers in Nauvoo and Hancock County. All of them enjoyed close personal relationships with Joseph Smith. They ate at his table, traveled with him, conducted business together, and served together. In 1842, William Law gave speeches in defense of the Saints and offered rebuttals to statements made by John C. Bennett, and Robert Foster inspected timberland with Joseph Smith.23 William Law and other trusted friends met with Joseph Smith while he was in hiding in August 1842, and Wilson Law wrote letters for Joseph Smith to secure his safety. On June 27, 1843, William and Wilson Law were among the 175 men who went to Peoria, Illinois, to rescue Joseph.
Two of these six attained high status in the Church. At the time of April conference in 1840, Robert Foster was appointed to the Conference Committee,24 and at October conference that year, William Law was appointed to the Conference Committee.25 On January 8, 1841, a proclamation from the First Presidency mentioned the faithfulness and good example of Robert Foster,26 and two weeks later William Law was called into the First Presidency. In 1842, Robert Foster was named as the “President of the Church in New York,”27 and concurrently William Law and Hyrum Smith traveled together to the Eastern States. William Law received his endowment from Joseph Smith on April 26, 1843,28 and on July 30, William joined Hyrum Smith and Willard Richards in giving Joseph Smith a priesthood blessing of health.29
Politically and socially, William and Wilson Law served on the Nauvoo City Council or as aldermen in the early years of Nauvoo. In 1840, the city council met in the home of William Law. William Law was appointed to the Nauvoo Board of Health on February 11, 1843.30 Robert Foster was elected a school commissioner in August 184331 and became the Surgeon General of the Nauvoo Legion on April 22, 1843.32 Wilson Law, who had been put in charge of a cohort of the Nauvoo Legion on May 7, 1842, commanded the parade of the Nauvoo Legion on July 4, 1842,33 and then was elected Major General of the Nauvoo Legion in August 1842,34 although he did not remain in that position for long. On December 26, 1842, Wilson Law was required to arrest Joseph Smith on orders from Governor Carlin,35 but Wilson granted Joseph Smith bail in connection with his habeas corpus petition on December 31, 1842,36 and he and his brother William were invited to a party at Joseph Smith’s home on January 11, 1843.37
Except for Charles Foster, these men were extensive land holders in Nauvoo and in the surrounding farmlands in Hancock County. Within the city of Nauvoo, Robert Foster owned 1 block and 20 lots; William Law, 1 block and 6 lots; Wilson Law, 4 blocks and 3 lots; Francis Higbee, 2 lots; and Chauncey Higbee, 2 blocks and 13 lots. Their lots were mainly in the sections of town named Nauvoo, Kimball, and Wells. Outside of Nauvoo, Robert Foster owned at least 600 acres; William Law, at least 440 acres; and Wilson Law, 320 acres. The Laws also built grist and lumber mills on Water Street in Nauvoo, as well as a store.38 The other men had smaller holdings.39 Ownership of these real properties would have unified these men in several ways, and these economic interests may have made it harder for these dissenters simply to leave Nauvoo than it was for John C. Bennett, who appears to have owned no property there.
Moreover, property concerns brought these men into business conflicts with Joseph Smith and other Nauvoo citizens. On January 17, 1843, Joseph Smith arbitrated a land case involving Robert Foster and six others.40 A month later, Robert found himself in conflict with Joseph Smith over the economic development of some of the properties on the hill, which were of greater value than properties in the Nauvoo flat; he wanted to promote his own development projects that competed with the building of the Nauvoo House41 and the Church’s need to sell lots on the river flats to pay off huge debts.42 Also at that time, Wilson Law was brought to court by U. C. Nickerson, as the two men wrangled over some islands in the Mississippi River near Nauvoo; and on March 29, 1843, Joseph Smith and Orson Spencer ruled against Robert Foster in a case concerning a debt.43
These men, like many others living in the developing Mississippi valley at that time, had demonstrable propensities toward verbal outbursts and disorderly conduct. Strong and sometimes lethal violence was seen as a reaction to all sorts of political conflicts and social scrapes. On November 20, 1840, Robert Foster was charged with “slandering the authorities of the Church, for lying, profane swearing and individual abuse and other unchristian-like behavior”;44 the Nauvoo Stake high council dealt with this case for two days in December, with the First Presidency eventually acquitting Foster of the charges on December 20. In May 1842, Francis Higbee was charged by Sidney Rigdon for circulating evil reports about Rigdon’s family, and Chauncey Higbee with Robert Foster and others were brought before the Nauvoo Stake high council on various charges of misconduct.45 Robert Foster was charged with using abusive language against Samuel Smith and the city marshal.46 Ironically, two months earlier Foster had testified in Joseph Smith’s defense against Amos Davis’s use of indecent language toward the Prophet.47 In an election in February 1843, Robert Foster obstructed people trying to vote,48 and in April that year William Law was able to convince a court to agree with him in a case regarding a use of foul language; during that same time, Thomas Rancliff complained that William and Wilson Law and Robert Foster had swindled him and had refused to obey counsel.49 On April 26, 1844, Charles Foster was arrested for pointing a gun at Joseph Smith, and together with Chauncey Higbee, “said th[e]y would be God damnd. if th[e]y would not shoot. the Mayor—breathed out many hard threatnig and menacing sayings—would consider favord of God—for the privilege of shooting. or ridding the world of such a Tyrnt. Refrrig [referring] to the Mayor.”50 On June 8, Joseph said that William “had offered [Joseph] Jackson $500 dollars to kill him.”51 Obviously, using harsh language and even stronger expressions of outrage were common enough, though unwelcomed, occurrences.
Although Joseph Smith himself often responded with strong reprimands, many conflicts were settled by Joseph Smith through his personal mediation and skillful arbitration, often leading to confessions, commitments to reform, and forgiveness. On May 13, 1842, Joseph successfully reconciled Sidney Rigdon with Francis Higbee.52 On May 20, Robert Foster confessed to abusing Samuel Smith and Henry Sherwood; after being judged by his Masonic brothers, he was forgiven, Joseph Smith speaking at length on that occasion.53 On June 19, 1842, Joseph Smith held a long conversation with Francis Higbee, who promised to reform.54 The 1843 litigation between Wilson Law and U. C. Nickerson was settled upon a suggestion of Joseph Smith.55
Even into 1844, as the situation with the six dissidents grew more and more serious, Joseph continued to try to resolve differences between himself and the objectors. On January 16, 1844, Joseph Smith announced to the city council that he and Francis Higbee had resolved their difficulties and had committed to be friends forever.56 On May 27, 1844, in Carthage, Joseph entertained a conciliatory conversation with Charles Foster, and although he appeared to be mild and “was almost persuaded,”57 Charles clung to false reports and did not return. As late as June 7, 1844, in response to a strong letter from Robert Foster, Joseph offered to arbitrate their differences and to allow him and the Laws to come back.58 But this time, no amount of personal persuasion would stem the incoming tide.
No doubt, these men were emboldened by their legal expertise. All six were either lawyers themselves or made effective use of local legal procedures and powers. They knew firsthand Joseph’s typical legal tactics and strategic responses to litigation. On May 20, 1842, Chauncey Higbee and Robert Foster were involved in a case tried before the high council, with Joseph Smith as judge.59 As attorney for Orsimus Bostwick in a slander case in February 1844, Francis Higbee gave notice of his intent to appeal the case to Carthage. Joseph saw this maneuver to be an effort “to stir up the mob— & bring them upon us.”60 Robert Foster became a justice of the peace. In that capacity, on January 6 and 8, 1844, he issued a warrant for the arrest of Milton Cook on charge of bastardy and sent a posse of eleven men to arrest him in Carthage.61 Around April 1, 1844, Robert Foster heard the case of one man beating another,62 and on April 2, 1844, he issued a warrant for the arrest of three Nauvoo policeman in a controversial public matter accusing them of false imprisonment.63 On May 6 and 20, Francis Higbee used the courts to sue Joseph Smith for defaming his character.64 Still in May 1844, Robert Foster, Francis Higbee, William Law, and Wilson Law jointly indicted Joseph Smith for perjury and polygamy; before the grand jury, Francis Higbee boisterously offered “much ha[r]d sw[e]aring” but his testimony was rejected.65 In the end, Chauncey Higbee, together with Thomas Sharp, Sylvester Emmons, and two others acted as the prosecuting attorneys against Joseph and Hyrum Smith in charging them on June 26, 1844, for treason.66
The strongest winds of discord began to blow in January 1844. On Wednesday, January 3, Joseph Smith directed the marshal to bring William Law and John Snider before a special session of the entire Nauvoo City Council. The evening before, Hyrum had told Joseph that William claimed that some of the police had been sworn by the mayor secretly to put Law “out of the way.” Joseph wanted William to speak for himself and under oath. William testified that the policeman had said that “there was a Judas in the Gen[eral] Smith cabinet.” Joseph explained that he had heard from Orrin Porter Rockwell, who had spent most of 1843 in Missouri jails, that “they wanted to get me & thus
to put down Mormonism—so that they might organize upon their old principles—on the Orthodox system. [They] did not design to try me but [to] hang me, that they had a man in our midst who would deliver me up fix me out if they could not get me without.”67
The minutes were then read of another special session of the council five days earlier, on Friday, December 29, 1843, in which Joseph increased the police force and instructed them to leave Missouri alone and “keep out of her territory,” lest they be seized and suffer as Rockwell had suffered. Joseph alleged that his life was in “far greater danger from traitors among ourselves than from enemies without,” although his life had been sought by Missourians for many years. He added that Rockwell had informed him of “pretended friends who [had] betrayed” him after having been “in our councils, participated in our confidence, taken us by the hand, called us brother, saluted us with a kiss, joined with our enemies,” and all “by falsehood and deceit.” He spoke of Caesar being betrayed by “a right-hand Brutus” and concluded with this: “Judas was one of the Twelve Apostles, even their treasurer, and dipt with their Master in the dish, and through his treachery, the crucifixion was brought about; and we have a Judas in our midst.”68 William ended up claiming there was “no man in the city more zealous to support Mormonism than himself.”69
The long January 3 council meeting was continued on January 5, when William Law was still agitated about rumors spread by some police that he was that Brutus or Judas and may be in danger. “Hard words passed between” Joseph and William.70 Although Joseph did not think further testimony was necessary, William Marks now testified that Francis Higbee had said that Marks was the Brutus.71 Francis Higbee was brought to appear before the council, with William and Wilson Law also present. Higbee said that he did not know of “any one being in endanger[ed]” but that there were rumors implicating Law and Marks.72 Joseph said he was unaware of any such tales about Marks.73 He also thought Higbee should hold his tongue “lest rumor turn upon him” and thought young men of Nauvoo should “withdraw from him.”74
After the hearing, Joseph’s journal noted, “What can be the matter with these men? Is it that the wicked flee when no man pursueth . . . or that Presidents Law and Marks are absolutely traitors to the Church . . . that the traitor whom Porter Rockwell reports to me as being in correspondence with my Missouri enemies, is one of my quorum?” Three days later, Joseph said he “had an interview with William Law, in the Streets.”75 Joseph unilaterally released William Law from the First Presidency, and there is no record of the two men ever meeting in person again.76
Although Joseph and Francis Higbee seemed to reconcile on January 16, serious problems apparently continued to fester. How early these dissidents had agreed on a specific course of action against Joseph Smith may be impossible to determine, but on March 26, 1844, affidavits were tendered by Abiathar B. Williams and M. G. Eaton speaking of “a conspiracy.” Williams attested that “Joseph H. Jackson said that Doctor [Robert] Foster, Chauncey L. Higbee, and the Laws were red hot for a conspiracy, and he should not be surprised if in two weeks there should not be one of the Smith family left alive in Nauvoo,” and Eaton testified of a conspiracy against Joseph Smith.77
This all came to a head when Wilson and William Law and Robert Foster, along with Jane Law and Howard Smith, were excommunicated on April 18, 1844, at a combined council meeting to which the accused were not invited and were therefore not permitted to present a defense. At this unusual meeting, thirty-two church leaders were present, including six of the Twelve, seven of the high council, and nineteen others from the heads or presidents of all the priesthood quorums. According to the brief report in the diary of Joseph Smith by the hand of Willard Richards, these five were cut off for “unchristianlike conduct.”78 William Law commented in his diary on April 19 that they had been cut off for being “opposed to Joseph Smith” and in “fear that we might bring charges against them, and therefore . . . lest we should expose their wicked acts.”
On April 28, 1844, the defectors met at the Laws’ property near their sawmill to organize their own “Reformed Church of Jesus Chirst of Latter-Day Saints,” choosing William Law as president and prophet. Affidavits against Joseph Smith and others were collected, and a committee was appointed to visit families in Nauvoo to see who might join their new church. On that committee were William Law, Wilson Law, Francis Higbee, Robert Foster, and three others. Wilson Law was chosen as one of his counsellors, and Robert Foster and Francis Higbee were among their twelve apostles.79 The group professed that Joseph had once been an authentic prophet, but that he had fallen and needed to be deposed.80
Then on May 10 a prospectus for the proposed Nauvoo Expositor was circulated on the streets of Nauvoo under the names of William and Wilson Law, Francis and Chauncey Higbee, Robert and Charles Foster, and Charles Ivins, calling for “uncompromising hostility” against any union of church and state, as well as for “unmitigated disobedience” to political revelations and the propagation of “gross moral imperfections.”81 On May 18, 1844, Francis Higbee, James Blakesly, Charles Ivins, and Austin Cowles were excommunicated by the Nauvoo Stake high council “for apostatizing.”82
After this time, the term “conspiracy” was openly used to describe the concerted group actions of this coalition. In a conversation in Carthage on May 27, 1844, Charles Foster told Joseph Smith that there was “a conspiracy” against his life.83 On June 8, Wilford Woodruff recorded in his journal that two men had told him that “a conspiracy is got up in this place for the purpose of taking the life of President Joseph Smith, his family, and all the Smith family & the heads of the Church,” and he identified Chauncey Higbee, Robert Foster, William Law, and Wilson Law among the heads of the conspiracy.84 On June 8, Joseph Smith testified before the Nauvoo City Council that “at the time Gov. Carlin was pursuing me with his writs, William Law come to my house with a band of Missourians for the purpose of betraying me—come to my gate—and was prevented by Daniel Cairns who was set to watch.” William Law had come that night at about 10 p.m. with a dozen men.85 Joseph reproved Law, who wrote a letter the next day to apologize. Ten days later, Truman Gillett Jr. swore an affidavit that on June 1, 1842, while on the steamboat Massachusetts, he heard a Missourian tell a man from Ohio: “If Law could have succeeded in getting an introduction for us to ‘Jo’ Smith . . . we would have gagged him and nabbed him.” The next day, the affiant said he confronted that same Missourian, who insisted that William was in on a plan with twelve or more Missourians to kidnap Joseph at the gate but that they were stopped by the police.86 On June 10, Joseph concluded that “all the sorrow he ever had in his family in this city has arisen through the influence of William Law.”87
Whether the plans of the dissidents can or cannot be properly called a well-planned conspiracy, they undoubtedly went forward, acting deliberately and concertedly. Their general objectives were known to many with whom they had discussed their organization of a new church by at least April 28, and efforts to require Joseph Smith to appear in court in Carthage were continued in May with criminal allegations of perjury and polygamy and adultery. Governor Thomas Ford, in his History of Illinois, described the situation in Nauvoo in June, as it became more intolerable for the dissenters, as follows:
William Law, one of the most eloquent preachers of the Mormons, who appeared to me to be a deluded but conscientious and candid man, Wilson Law, his brother, major general of the legion, and four or five other Mormon leaders, resolved upon a rebellion against the authority of the prophet. They designed to enlighten their brethren and fellow-citizens upon the new institutions, the new turn given to Mormonism, and the practices under the new system, by procuring a printing press and establishing a newspaper in the city, to be the organ of their complaints and views. But they never issued but one number; before the second could appear the press was demolished by an order of the common council, and the conspirators were ejected from the Mormon Church.88
While the words “resolved,” “rebellion,” “designed,” and “conspirators” should not be sensationalized, it is clear that the Laws, Higbees, and Fosters willingly intended more in this unfolding episode than the mere expression of inflammatory rhetoric or theological disagreement, as the following analysis of their use of the legal system demonstrates.
The Dissidents Launch Their Legal Campaign
Starting already on February 26, 1844, the first of three meetings designed to bring down Joseph and Hyrum Smith was held at the home or store of William Law in Nauvoo.89 That same day, these brothers and their associates instituted or appealed a series of three lawsuits against Joseph before the Hancock County Circuit Court in Carthage—the county seat fifteen miles from Nauvoo. Around the same time, other legal actions sprang up in the Nauvoo city courts involving these opposing parties.90
First, on February 26, Francis Higbee appealed a Nauvoo conviction of his client, Orsimus F. Bostwick, for slandering Hyrum Smith. Joseph immediately countered, “I told Higbee what I thought of him for trying to carry such a suit to Carthage—it was to stir up the mob and bring them upon us.”91 As early as March 7, Joseph publically denounced the use of the appeals process by Higbee and others, not only as an unfounded effort to harass and annoy him, as some commentators have said, but more to force him out of the safety of Nauvoo into a more vulnerable location:
Those who complain of our rights and charters are wicked and corrupt, and the devil is in them.
The reason I called up this subject is, we have a gang of simple fellows here who do not know where their elbows or heads are. . . . [I]f there is any case tried by the authorities of Nauvoo, they want it appealed to Carthage to the circuit court. Mr. Orsimus F. Bostwick’s case had to go to Carthage. Our lawyers will appeal anything to the circuit court.
I will expose the iniquity of the lawyers and wicked men. . . .
. . . I despise the man who will betray you with a kiss; and I am determined to use up these men, if they will not stop their operations. If this is not true, let him come forward and throw off the imputation.
When they appeal to Carthage, I will appeal to this people, which is the highest court. I despise the lawyers who haggle on lawsuits, and I would rather die a thousand deaths than appeal to Carthage.92
This case was eventually consolidated with an action by the City of Nauvoo against Bostwick, and both matters were then dismissed by the Hancock Circuit Court in Carthage on May 20, 1844, with costs assessed against Bostwick.
Second, on May 6, Joseph was served with a warrant based on a complaint filed in the Hancock County Court by Francis Higbee for $5,000 in civil damages, based on being allegedly slandered by Joseph during the January 5 Nauvoo City Council proceedings. Rather than traveling to Carthage to respond, however, Joseph was granted a habeas corpus hearing in Nauvoo. On May 8, Joseph was discharged from custody, and Higbee was charged with costs. In the course of his testimony, the Prophet said, “The only sin I ever committed was in exercising sympathy and covering up their93 iniquities, on their solemn promise to reform, and of this I am ashamed, and will never do so again.” The case was eventually transferred to the McDonough County court, where it was dismissed with court costs assessed against the plaintiffs.94
Third, on May 27, 1844, exactly one month to the day before his death, Joseph was in Carthage to face a combination of appeals on several actions derived from suits first brought by or against him in Nauvoo involving the Higbees, plus two grand jury criminal indictments for perjury and adultery initiated by the Laws.95 While at Artois Hamilton’s hotel in Carthage the night before the hearings on these cases, Charles Foster told Joseph of a plot to kill him the next day, either before or after going to court.96 Thus warned, enough well-armed troops were mustered from Nauvoo to guarantee Joseph’s protection, and he safely returned home when the cases were continued for lack of a witness.97 One month later he would not be so fortunate. That was the last time Joseph left his safe harbor at Nauvoo until two days before his death.
Not wasting any time, on May 29, Thomas Sharp of the Warsaw Signal predicted: “We have seen and heard enough to convince us that Joe Smith is not safe out of Nauvoo, and we would not be surprised to hear of his death by violent means in a short time. He has deadly enemies—men whose wrongs have maddened them. . . . The feeling of this country is now lashed to its utmost pitch, and will break forth in fury upon the slightest provocation.”98
The group of dissenters acquired a printing press to publish a weekly newspaper, the Nauvoo Expositor. The seven publishers of the Expositor included all six of the Law, Foster, and Higbee brothers, plus a local businessman and a bishop in the new church, Charles Ivins.99 As partners, they conducted business under the firm name of Charles Ivins & Co. Their editor was Sylvester Emmons, a non-Mormon lawyer and a former member of the Nauvoo City Council.100
Destruction of the Nauvoo Expositor
The first and only issue of the Expositor came out on Friday, June 7. It included seven editorials, most of them likely written by William Law. It also featured affidavits sworn by both Law and his wife, Jane, attesting that they had read a revelation (now D&C 132) that permitted a man to have more than one wife. A third affidavit, by Austin Cowles, a former member of the Nauvoo high council, claimed that this revelation also proclaimed “the sealing up of persons to eternal life, against all sins, save that of sheding innocent blood or of consenting thereto.”101 The fact that this revelation had not been released publicly and that Joseph and others in his inner circle of church leaders were carefully keeping their practice of plural marriage out of the public eye may, in part, explain Joseph’s strong reaction to the Expositor. Included in its “public exposition of the enormities of crimes” committed by Joseph Smith were fraud, base seduction and “fatal schemes” to entrap many “inoffensive and unsuspecting creatures,” leading such women to an “untimely grave.” The paper also campaigned to repeal the city charter, which provided Nauvoo with its greatest legal and military protection. If the charter were repealed, and the Nauvoo Legion’s status as a legal militia abolished, the risk of mob action to its citizens would greatly increase. Repeal of the charter would also remove Joseph’s best means of quashing an arrest warrant by using the favorable powers granted by the Nauvoo Charter to the Nauvoo City Council to grant writs of habeas corpus. Strong as it was, the Expositor promised that future issues would be even less restrained and would “speak in tones of thunder.”102
While Joseph was likely concerned that the Expositor might incite outside mobs against the Mormons, he may have been more fearful of retaliatory mob action by his own citizens against the Expositor. Their riotous action would in turn be even more likely to provoke an outside attack upon the entire community. He later told Governor Ford, when they met in person: “Our whole people were indignant, and loudly called upon our city authorities for redress of their grievances, which, if not attended to, they themselves would have taken into their own hands, and have summarily punished the audacious wretches, as they deserved.”103 Earlier, Joseph had told the Nauvoo City Council that he “would rather die tomorrow and have the thing smashed, than live and have it go on, for it was exciting the spirit of mobocracy among the people, and bringing death and destruction upon us.”104
Equally compelling, perhaps, Joseph may have sought divine sanction for his action. Journalist George Laub recorded that before the Prophet took action, “Bro Joseph called a meeting at his own house and told the people or us that God showed him in an open vision in daylight that if he did not destroy that press, Printing press, it would cause the Blood of the Saints to flow in the Streets & by this wise that Evil destroy [us].”105 So in an effort to prevent an actual riot within the city and to spare the citizens of Nauvoo, Joseph Smith, as mayor, convened the city council for two full days and discussed at length what action should be taken. Much has been written about this decision and whether it could be justified, both legally and sensibly, but reviewing that discussion lies beyond the scope of this article. Suffice it to say that, with one dissenting vote (Benjamin Warrington, a non-LDS early settler in Nauvoo), the city council officially voted to “abate” the Expositor press as a public nuisance.106
Accordingly, just before dark on Monday, June 10, 1844, eleven law officers moved up the stairs of a two-story brick office building in downtown Nauvoo. Situated on the north side of Mulholland Street, only one block east of the partially completed LDS temple, this structure housed the print shop that, only three days earlier, had published the first and only issue of the Nauvoo Expositor.
Nauvoo City Marshal John P. Greene was met at the head of the stairs by Francis Higbee, one of the publishers. Greene produced a paper that was signed one hour earlier by Mayor Joseph Smith, ordering Greene to “destroy the printing
establishment press,” all Expositor copies, the type, “and all libelous handbills found in said establishment.” Furthermore, the order stated that “if resistance is offered,” his men were to “demolish the house” and “arrest those who threaten you.”107
Finding the door at the head of the stairs locked, Greene demanded the keys but was refused by Higbee, who began to shout and threaten the police. Rather than arrest him or demolish the house, as he was authorized to do, Greene instead “ordered the door to be forced.”108 Inside they found Charles Foster, another publisher. He joined Higbee in another stream of threats to the lawmen. Without further delay, the city police then carried the press, the type, and all papers down into the street.109
With a sledge hammer, the police smashed the press, then burned the newspapers and “pied” (or scattered) the type in the street. They claimed that nothing else was destroyed. Witnesses testified that there was no other “riot or disturbance, no noise, no exultation . . . or shouting.”110
Orderly as this action may have seemed to the actors, it ignited a firestorm of violent outcries and legal reactions that was as sudden and complete as was the shutting down of the Expositor. The destruction of the Nauvoo Expositor press quickly became the flashpoint for enemies of Joseph Smith, both inside and outside the Church.
A Fatal Mistake or Justified Action?
Many historians have viewed Joseph’s response to the Nauvoo Expositor as his “grand mistake,” as entirely illegal, an unnecessary overreaction—or at least “unwise.”111 I must disagree.
In his June 22, 1844, letter to Joseph Smith, Governor Thomas Ford (a former Illinois Supreme Court justice) preceded this chorus of critics. Citing concerns about violating freedom of the press, he called destruction of the Expositor “a very great outrage upon the laws and liberties of the people.” He claimed it was a case of first impression: “In no other state, county, city, town or territory in the United States has ever such a thing been thought of before.”112
In a strongly worded reply letter sent the next day, Joseph defended himself. He said the Nauvoo authorities had acted only on the advice of Blackstone and able counsel, using their own best judgment, and inquired what Ford would have done under similar circumstances. He directed the governor’s attention to “Humphrey versus Press,” an apparently settled or never-litigated case that resulted in no legal causes of action (either civil or criminal) after one Van R. Humphrey damaged an Ohio press “by his own arm for libel.” Joseph also noted, “We do know that it is common for police in Boston, N. York, &c to destroy scurrilous prints.”113 In addition to these precedents, Oaks determined that for nearly a century after the Expositor incident, courts consistently upheld the suppression of libelous presses by official governmental action.114
Certainly unofficial action by a mob to destroy a newspaper was not unprecedented. In fact, Oaks called it “the temper of the times.” The Saints’ own press in Jackson County, Missouri, had been destroyed in July 1833, when the entire building was torn down and two of its occupants were tarred and feathered. Four years later in Kirtland, the Church’s press and book bindery were destroyed, this time by arson.115 In fact, in Illinois alone, there were at least sixteen instances of mob action against the press between 1832 and 1867, as well as seven in other states before 1844.116 Perhaps the best known incident involved Elijah Lovejoy, an abolitionist of Alton, Illinois. He was murdered in 1839 by a proslavery mob that also destroyed his printing press after three of his prior presses had received the same treatment between 1835 and 1837. Thus, Joseph’s desire to forestall a similar public riot against the Expositor was hardly novel. Given these antecedents, it would seem far more likely for the paper and its press to be suppressed by direct overt action rather than by judicial due process.117
Whether or not one agrees with the foregoing arguments, Professor Oaks concluded that even if there were no direct legal precedent in 1844 to justify suppressing the Expositor for printing libelous material, neither was there any authority to forbid it. As for actions by Joseph Smith and the city council, Oaks commented, “To charge them with a willful violation of the Illinois free-press guarantees, one must overlook the suppressionist sentiments of the age in which they lived” and any “reference to the law of their day.”118
Ultimately the Nauvoo City Council, with Joseph as mayor in agreement, decided that, under the circumstances, their actions were justified. They greatly feared that by not abating the press, it would continue to incite and arouse outside mobs of anti-Mormons to attack Nauvoo and drive out its citizens, exactly as anti-Mormon leaders were threatening to do. Joseph told the Nauvoo City Council on June 8th: “What the opposition party want is to raise a mob on us [from outside of Nauvoo] and take the spoil from us, as they did in Missouri.”119
Joseph’s concern about the press inciting outside mobs was not ill founded:
1. The Expositor Threat. The Expositor itself urged its readers to “arise . . . and sweep the influence of tyrants and miscreants from the face of the land.” In answering its own question, “Will you bring a mob upon us [the Mormons]?” the newspaper affirmed that “if it is necessary to make show of force, to execute legal process, it will create no sympathy in that case [for the Mormons] to cry out, we are mobbed.”120 Joseph saw the phrase “to execute legal process” as a call to “raise a mob [against] us . . . as they did in Missouri,” when local militia units executed an official extermination order, thereby enabling Missourians to “take the spoil from us” and ultimately expel the Mormons from that state.121
2. The Signal Threat. The Warsaw Signal on May 22 and June 12, 1844, also noted that if the press were abated, it might provoke an incident that could lead to mob action and a similar expulsion from Illinois. Thus, no matter what happened to the Expositor, it would further the dissidents’ goals. If allowed to continue, it would agitate outside anti-Mormons and foment more dissention within Nauvoo. If abated, that act could also arouse action by anti-Mormons against the Mormons, as in fact occurred.
3. The Nauvoo City Ordinance. The city council recognized this same motive. One day after the Expositor issue was published, the council passed its June 8th ordinance against criminal libel, expressly providing in the preamble that: “Whereas a horrid, bloody, secret plan upheld, sanctioned and largely patronized by men in Nauvoo and out of it, who boast that all they want for the word go, to exterminate or ruin the Latter-day Saints, is for them [the Mormons] to do one unlawful act and that work [of extermination] shall be done.” The preamble also described that “bloody, secret plan” as a design “to frighten the surrounding country into rebellion, mobbing and war.”122
4. Mob Meetings. In its issue on Wednesday, June 12, two days after the suppression, the Mormon paper Nauvoo Neighbor decried presses that would “bring upon us mobs to plunder and murder.” Within one week after the Expositor was suppressed, mobs met in Carthage and then the next day in Warsaw to pass resolutions for the arrest of Joseph Smith, and the invasion of Nauvoo was called for on June 14 in the Warsaw Signal for “Wednesday next,” June 19—with or without the Governor’s authorization.123 The speed and efficiency of such mobilization, including the bringing of men and arms from Missouri, and the setting of this specific date for the invasion only five days later cumulatively imply that a coordinated plan may have already been in place before the Expositor was destroyed. As Oaks noted, “Subsequent events, notably the mob murder of Joseph Smith and the eventual expulsion of the Mormons from Nauvoo by armed mobs, suggest that these fears were not groundless.”124
Even greater than the council’s concern that the Expositor may incite outside mobs against the Mormons was the Prophet’s fear of retaliatory mob action by his own citizens against the Expositor, as described above. So in an effort to prevent a true riot within the city and to spare the citizens of Nauvoo, Joseph Smith convened the city council, which ordered him as mayor to destroy the Nauvoo Expositor.
Hearings on Riot Related to the Nauvoo Expositor
Early the next morning, Tuesday, June 11, Francis Higbee sped off to Carthage, reportedly dressed in disguise to get out of town.125 There he swore out a complaint against Joseph Smith as well as the entire city council that had directed the abatement and leaders of the police who had carried out the order. The following day, Wednesday, Constable David Bettisworth from Carthage rode into Nauvoo with an arrest warrant signed by Carthage Justice of the Peace Thomas Morrison. The warrant instructed Bettisworth to arrest and bring eighteen named defendants before the issuing magistrate “or some other justice of the peace.”126 Bettisworth became “very wrathy”127 when the served defendants refused to accompany him back to Carthage but instead sought petitions of writs of habeas corpus from the Nauvoo Municipal Court. Joseph Smith’s writ claimed that he had been charged with the crime of “riot.”128 This started a chain of court proceedings that made the Expositor action an intensely litigated matter. The following summary describes that cascade of legal proceedings, leading almost immediately to Carthage. Quite likely, no plot or conspiracy could have predicted exactly how this bold attack on Joseph Smith and the Nauvoo establishment would unfold, but given the mob actions and deaths that resulted in Alton, Illinois, under similar circumstances seven years earlier,129 bloodshed would not have been unforeseeable.
Riot Hearing No. 1. The same day he was served, Joseph obtained a writ of habeas corpus from the Nauvoo Municipal Court, signed by Willard Richards as clerk. City council members who also served as aldermen and municipal court judges heard the case that same day in the newly completed Nauvoo Seventies Hall. George W. Harris was presiding judge pro tem, since Joseph was chief justice of that same court. As with all habeas corpus hearings, this was not a formal trial in the sense that it did not result in a verdict of either guilt or innocence;130 but the hearing lasted most of the day, heard by a panel of seven judges with twenty-one witnesses being called.
The court first had a reading of the city council’s resolution that had declared the Nauvoo Expositor a nuisance and the mayor’s suppression orders. They also consulted their own city charter and ordinances. Witnesses then testified about the nature of the abatement, and the court addressed whether the legal requirements for a “riot” had been met or avoided. Specifically, the Illinois criminal jurisprudence law then in effect provided:
Sec. 117. If two or more persons actually do an unlawful act with force or violence against the person or property of another, with or without a common cause of quarrel, or even do a lawful act in a violent and tumultuous manner, the persons so offending shall be deemed guilty of a riot, and on conviction, shall severally be fined, not exceeding two hundred dollars, or imprisoned not exceeding six months.131
After hearing testimony from some twenty-one witnesses, the seven justices determined that the city had acted under proper authority and that no riot (as so defined) had occurred in executing the order. Rather, the main tumult in the entire episode came from shouts and threats from publishers of the Expositor. Joseph was discharged and released, while Francis Higbee was assessed court costs, on grounds of malicious prosecution.132
Some commentators have charged that: (a) Joseph too frequently invoked habeas corpus to gain delivery from arrest and jail, and (b) he also abused this process by having the underlying merits of the case tried—as opposed to merely examining the legality of arrest and detention. Like the charters of two other cities in Illinois,133 the Nauvoo Charter gave its municipal court “power to grant writs of habeas corpus in all cases arising under the ordinances of the City Council.”134 Under state law, city ordinances implementing this power enabled a court to release a prisoner if he had been charged and arrested due to “private pique, malicious intent . . . or falsehood.” If it found that the arrest had been proper, the court was also authorized to “proceed and fully hear the merits of the case.” The prisoner could then be released, subject to being retried based on additional evidence, regardless of where the alleged crime had occurred. Some legal scholars have argued that this was consistent with the prevailing law at that time. The anti-Mormon perspective, however, focused on the perceived abuse of habeas corpus in terms of jurisdiction. It wasn’t just an issue of whether Joseph invoked habeas corpus too often or that the Nauvoo Municipal Court’s hearings considered the underlying merits of cases, but that habeas corpus was heard at all by the Nauvoo Municipal Court for cases that clearly did not “arise under the ordinances of the city council.”135 This was the focal point for the anti-Mormon argument for abuse of political and legal power.
Riot Hearing No. 2. The next day, Thursday, June 13, Joseph presided over a hearing of the other seventeen defendants. Some court justices had acted as members of the city council that had voted to suppress the Expositor, and some had sat on the same court that had acted the previous day. By modern standards, this procedure would pose rather obvious conflicts of interest, with Joseph and his council essentially taking turns trying each other. However, nineteenth-century court rules and procedures were far more lenient than today’s.136 Predictably, the result was the same as the riot hearing for Joseph Smith: All defendants were discharged, and Higbee was again assessed the costs of the proceeding.137
This apparently satisfied no one outside of Nauvoo. Even though the court proceedings were not technically illegal, it was recognized from a common-sense perspective as an abuse of the system. Once again, the crux of the complaint likely was not a perception that what the Mormons were doing was somehow unique or never considered by other frontier Americans, but rather that the executive, legislative, and judicial powers were so wholly embodied in the same people in Nauvoo, and particularly that Nauvoo authority seemed to trump any level of legal device issued outside the city’s boundaries.
Consequently, the countryside went into an uproar. Using words the Mormons had heard before in Missouri, the June 18 Warsaw Signal called for mobs to “utterly exterminate the wicked and abominable Mormon leaders.”138 From Carthage, the Hancock County Circuit Court presiding judge, Jesse Thomas, hastened to Nauvoo on Sunday, June 16. During a meeting with the Prophet after his last public sermon, Judge Thomas advised Joseph to have the case tried once more, but this time before a non-Mormon judge outside of Nauvoo. Regardless of whether the defendants were acquitted or bound over for trial, Thomas felt that this action would answer the requirements of the law and cut off all legal pretext for mob action, thus enabling him to issue an order requiring would-be mobbers to keep the peace.139
Riot Hearing No. 3. Acting on Judge Thomas’s advice, on Monday, June 17, an identical complaint was filed by a citizen named W. G. Ware. This time a full trial of all but one defendant was held before Justice Daniel H. Wells at his home located just outside of Nauvoo. Wells had not yet become a Mormon, as he would two years later, and had not been part of the municipal court proceedings the previous week.140 Nauvoo City Attorney George P. Stiles again represented the defendants, and Edward Bonney acted as the state’s attorney. After a long hearing, with examination and cross-examination of five witnesses for each side, all defendants were again discharged.141 This, too, failed to satisfy the agitated neighbors.
Aftermath of the Three Nauvoo Hearings. To summarize the above, Thomas Sharp’s Warsaw Signal immediately, on June 14, published anti-Mormon resolutions passed at mass meetings in Carthage and Warsaw.142 Those resolutions called for the invasion of Nauvoo and extermination of all Mormons. Some of the Expositor publishers were prominent participants in these meetings. In addition, the resolutions set the date of Wednesday, June 19, to invade Nauvoo and arrest Joseph Smith—with or without any official authority.143 Upon learning “from credible sources, as well as from the proceedings of a public meeting at Carthage, &c., as published in the Warsaw Signal Extra, that an energetic attempt is being made by some of the citizens of this and the surrounding counties to drive and exterminate the Saints by force of arms,” Joseph wrote to Governor Ford on June 16, urging him to come to Nauvoo and assist in keeping the peace. Joseph also offered to place the Nauvoo Legion under Ford’s command.144
The Declaration of Martial Law
On Tuesday, June 18, Joseph, as mayor, declared martial law, “to preserve the city and the lives of its citizens.”145 He called into active duty the roughly three-thousand-man Nauvoo Legion, consisting of virtually every able-bodied adult male resident. Now military authority temporarily replaced civilian government (even though Joseph was the leader of both), in an effort to maintain better control. Joseph’s written directive to the Legion was to let “no persons or property pass in or out of the city without due orders.” When the Legion was assembled, Joseph, as their commander-in-chief, addressed them in full military dress uniform from a platform atop a partially completed building. With a drawn and uplifted sword, he defied mob rule, stating:
I call God and angels to witness that I have unsheathed my sword with a firm and unalterable determination that this people shall have their legal rights, and be protected from mob violence, or my blood shall be spilt upon the ground like water, and my body consigned to the silent tomb. . . . I do not regard my own life. I am ready to be offered a sacrifice for this people; for what can our enemies do? Only kill the body, and their power is then at an end.146
This show of force apparently forestalled the planned June 19 siege of Nauvoo and momentarily protected the Saints. However, it was yet another factor that led to the death of both Smiths. With civil war seemingly imminent, Joseph nonetheless prophesied to Theodore Turley “in confidence there will not be a gun fired on our part at this time.” That same day Joseph urged Hyrum to take his family to Cincinnati for safety, but Hyrum replied, “Joseph I can’t leave you.”147
Ford did come, but to Warsaw and Carthage instead of Nauvoo. So he first heard the anti-Mormon version of Mormon depredations. The governor initially sent Joseph a letter of June 21, politely requesting an audience in Carthage with “one or more well-informed and discreet persons, capable of laying before me your version of the matter.” In response, the next day Joseph sent two of his most articulate representatives: Dr. John M. Bernhisel (later Utah’s first delegate to the U.S. Congress) and John Taylor (editor of both Church newspapers in Nauvoo). They took with them Joseph’s written “version of the matter,” including detailed documentation.148
When they met with Ford the next day, John Taylor said they were shocked to find him already in meeting with fifteen to twenty of the “vilest and most unprincipled men in creation,” including ex-LDS dissidents and publishers of the ill-fated Expositor. For about an hour, each time the Mormon emissaries tried to speak, they were interrupted and contradicted by those men. They then had to wait another five or six hours while Ford (a former judge) prepared a strong letter back to Joseph. It was basically a one-sided brief on a series of legal points involving the Expositor. Ford demanded re-arrest by the same Carthage constable and yet another retrial of the riot charge—this time in Carthage, he said, before the same magistrate who had issued the original summons.149
The Mormons were willing to be retried but not in Carthage or other hostile venues. Instead, Ford demanded that all defendants not only come immediately to Carthage but come unescorted and unarmed—without the protective entourage that had supported Joseph in Carthage the previous month. Ford guaranteed full protection if they complied, and he pledged the full faith of the state of Illinois. He also threatened that the only alternative was for him to mobilize the local militia to arrest the defendants. Said Ford, “If a few thousand will not be sufficient, many thousands will be.” He also warned, “[If it is] necessary to call out the militia, I have great fears that your city will be destroyed, and your people many of them exterminated.” He emphasized that the militia may be hard to control and “may assume a revolutionary character, and the men might disregard the authority of their officers.” In other words, Ford could unleash a bloodbath if the Mormons failed to comply. Having said that, Ford then organized the local militia. He effectively placed the mob under his own command, with Brigadier General Minor Deming directly in charge.150
After hearing his emissaries’ report and reading Ford’s letter late on Saturday, June 22, Joseph lamented, “There is no mercy there.” By midnight, he had prepared a lengthy letter rebutting each of Ford’s legal points. For example, he argued that a retrial of the same facts and law would expose him to double jeopardy, contrary to the protections of both the Illinois and U.S. Constitutions; and he assured Ford that in calling out the Nauvoo Legion, the measures were efficient and orderly, as constitutionally protected for well-regulated militias. Nevertheless, he expressed a willingness to undergo yet another trial, if it were held in a less inflammatory venue than Carthage. Ford flatly refused to move the trial to any other location.151
Joseph and Hyrum weighed their options. They considered going east to “importune” the President of the United States, as directed in an earlier scripture. On June 20, Joseph wrote a letter to President John Tyler, appealing for protection against abuses similar to what they had suffered in Missouri. We have no way of knowing whether he would have pursued that course of action; the events of the next few days rendered the point moot.152
Instead, the Smiths went west. By daybreak on Sunday, June 23, they had crossed the Mississippi over to the Iowa side, seeking safety at the home of William Jordan in Fort Madison.153 Joseph assured others before leaving that since he and Hyrum were the mob’s only target, Nauvoo would then be safe.154 But after receiving letters from home and suggestions that the leaders were abandoning the flock to the wolves in the hour of greatest danger, they returned to Nauvoo later that same evening. Stung by charges of cowardice, “Joseph told them that if his life was of no value to them it was none to himself.” He immediately sent word to Ford that he would go to Carthage and face yet another retrial on charge of riot.155
On Monday, June 24, en route to Carthage, Joseph and fifteen other defendants stopped twice on the same day at the home of Albert Gallatin Fellows. In February 1842, Fellows had acquired 160 acres on the main Nauvoo-Carthage Road, just four miles west of the county seat and twelve miles east of Nauvoo. It was a frequent stopping point for Mormons traveling to Carthage. Joseph and Hyrum’s first stop there on June 24 was at about 10 a.m. and involved an incident on the road directly in front of the Fellows home. There the unarmed Mormons were met by an onrushing cavalry unit of sixty dragoons from Carthage, led by Captain Dunn of McDonough County. They were under orders to collect all state arms of the Nauvoo Legion. Joseph agreed to help facilitate that disarming, but first went inside the house to write a note to Ford explaining the delay. After a full day spent peacefully gathering the weapons in Nauvoo, they stopped again after dark for refreshments at the Fellows home. It was there that Joseph again foretold his fate, which now bears the force of scripture: “I am going like a lamb to the slaughter, but I am calm as a summer’s morning. I have a conscience void of offense toward God and towards all men. I shall die innocent, and it shall yet be said of me—he was murdered in cold blood.”156
The Mormon entourage reached Carthage just before midnight on June 24. They found the town in uproar, mainly incited by the local militia (called the “Carthage Greys”) and dissident Mormons. Carthage had become an armed camp, evidencing more of a true “riot” condition than any action taken in Nauvoo to suppress the Expositor.157
Riot Hearing No. 4. An arraignment hearing was held at 4 p.m. on Tuesday, June 25. But nothing proceeded as Ford had demanded. First, the hearing was not conducted by the original magistrate, as he had insisted, but instead by Robert F. Smith. Although a justice of the peace, he was also captain of the Carthage Greys and head of the Anti-Mormon Party’s Central Corresponding Committee.158 Second, the case was not tried then, as promised, but rather was put over to the next circuit court term in October 1844, ostensibly due to the absence of a key witness. Ironically, the missing witness was none other than Francis Higbee, the very man who had signed the first complaint one week earlier. Justice Smith then set bail at $500 per defendant. That was an exorbitant sum, totaling $7,500 (over $200,000 in today’s money). The amount far exceeded the maximum fine of $70 to $200 per defendant for the crime of riot, a misdemeanor. Notwithstanding, the defendants or their friends immediately posted bail, many signing over deeds to their own homes and farms in lieu of cash.159 By doing so, they guaranteed that they would appear in October for the hearing.
Having posted bail, all defendants (including the Smith brothers) were then free to return home. The Expositor case was put over to be tried in October, at the next court term, and was no longer a pressing issue. Clearly, destruction of the Expositor did not directly cause Joseph and Hyrum Smith to go to jail or to their deaths, but it did place them in Carthage, where they became subject to arrest under a new allegation of treason, which would soon lead to their demise.
Final Riot Trial No. 5. Notably, the riot case did not die when the Smiths died on June 27, but it actually proceeded to trial against the other defendants the following year. New indictments were issued in October 1845, but only two men ever came to trial—John Lytle and Jesse Harmon, leaders of the police who actually destroyed the Expositor. Governor Ford’s summary of the case was terse and omitted any details: “The leading Mormons were tried and acquitted for the destruction of the heretical press. It appears that, not being interested in objecting to the sheriff or the jury selected by a court elected by themselves, they in their turn got a favorable jury determined upon acquittal, and yet the Mormon jurors all swore that they had formed no opinion as to the guilt or innocence of their accused friends. It appeared that the laws furnished the means of suiting each party with a jury.”160 However, the trial was hardly as one-sided or favorable to the Mormons as Ford implied. Brigham Young had more to say about it, and he said it much more colorfully:
Jesse P. Harmon and John Lytle who were charged with destroying the Expositor press were tried before Judge [Norman H.] Purple.
The court decided in his charge to the jury that the defendants acting under the municipal authorities of Nauvoo, were acting without authority, and if it could be proven that they had taken any part in the destruction of the press they were to be found guilty. [Dissident Henry] Rollison was the principal witness for the prosecution and gave a minute detail of the manner in which the nuisance was abated. He stated that Mr. Harmon took the lead of the police on the occasion. On being asked if it was Appleton M. Harmon or Jesse P. Harmon, he replied it was the policeman and on being informed they were both policemen, he became confused and said he could not tell which it was. The witness was asked whether it was John Lytle or Andrew Lytle, he replied, it was the Policeman Lytle. On being informed that they were both policemen, he answered it was the Blacksmith Lytle and on being told they were both blacksmiths, he declared that he could not identify the persons. The jury brought in a verdict of “not guilty” and the defendants were acquitted accordingly. Thus were the words of the Prophet Joseph fulfilled, who told the police (when they reported to him that they had abated the nuisance) that not one of them should ever be harmed for what they had done, and that if there were any expenses consequent he would foot the bill.161
That was the last known criminal action relating to the Expositor. However, one possible legal action still remained: the prospect of civil damages for the destruction of property. Although these proceedings for civil damages all unfolded after the murder of Joseph and Hyrum on June 27, understanding their financial insignificance shows that money damages were only a very minor motivator in this concentrated series of legal actions.
Civil Damages for the Expositor Owners
In his June 22, 1844, letter to Governor Ford, Joseph conceded that “if any property has been taken for public benefit without a compensation,” and “if we have erred, we again say we will make all right if we can have the privilege.”162 The Nauvoo City Council had determined to abate not only the published issues but also the press itself as the cause of nuisance. Some parts of Blackstone’s Commentaries would seem to provide an escape from civil liability if the abatement action were done in an orderly manner, without tumult or riot, and if an obstinate or malicious neighbor were involved. In two later Illinois cases, offending structures other than a printing press were apparently abated on similar grounds.163
However, the Blackstone provision that the city most specifically relied upon as primary authority for taking action stated only that “a libellous print or paper, affecting a private individual, may be destroyed.”164 That passage did not support the abatement of a printing press (the machinery) that produced the printed paper. Later Indiana and Illinois cases confirmed the view that, while the elimination of property to abate a nuisance may not be a crime, it may still result in civil liability. Thus, Oaks properly concluded that, whereas the city was not wrong to burn the printed papers, and it was not a crime to destroy the Expositor press, nevertheless “those who caused or accomplished its destruction were liable for money damages in an action of trespass,” a type of nineteenth-century tort (a wrongful act or an infringement of a right leading to civil legal liability).165
The only success at law for owners of the Nauvoo Expositor came by way of civil damages resulting from that destruction. The Joseph Smith Papers legal team has rediscovered a series of separate complex civil suits involving such claims for damages that are both convoluted and unique.166
On Monday, July 1, just two days after the Smith brothers’ funeral and burial, the Nauvoo City Council met to discuss the Expositor. A resolution was passed thanking attorney William A. Richardson “for his propositions to settle” the matter. It continued, “As to the press, we will do whatever is right towards a remuneration whenever we ascertain the minds of all the Proprietors of the Expositor.” The council was apparently assuming that it was liable for its prior suppression of the press.167
Hiram Kimball, a member of the council, was appointed to meet with those proprietors. At the next council meeting a week later, another resolution was passed thanking alderman Kimball “for the honorable course he has pursued” and requesting that he “continue his agency relative to the press of the Nauvoo Expositor.”168 Sometime before August 10, owners of the Expositor filed a joint civil lawsuit for damages, and Kimball was then instructed to pursue settlement “so soon as the proprietors of the press will indemnify the City Council from all suits commenced or to be commenced by them.”169
Those proprietors now consisted of four sets of brothers: the Laws, Fosters, and Higbees, plus Charles and James Ivins—businessmen in Nauvoo and Keokuk, Iowa, who had become Mormons in New Jersey. All had apparently acted as equal partners under the trade name of Charles Ivins & Co. The group now sought payment for their loss of property. Their suit was filed in the Hancock County Circuit Court at Carthage and named six Church leaders—Edward Hunter, Orson Spencer, John P. Greene, Stephen Markham, Alpheus Cutler, and Joseph W. Coolidge, all of whom were active participants in the June 10 abatement.170
On September 14, Kimball reported back to the city council that he had met with “the Higbees and one of the Fosters.” While he said he didn’t think “anything can be done with the Laws and Fosters,” he planned to meet again with Francis Higbee in Carthage later that same week. The council then appointed a settlement committee of Hiram Kimball and Edwin D. Woolley, granting them broad discretionary authority to settle the case.171
On October 12, the council approved the hiring of Almon W. Babbitt to assist the city attorney “in the law suits which were pending in Carthage against the City Council.” Settlement amounts totaling $725.00 were also approved, to be disbursed as follows: one promissory note for $100 to Leonard Soby (an Expositor investor), two other notes of $30 and $81.25 to Charles Ivins individually, and the largest note of $513.75 to Charles Ivins & Co. The large note was dated October 5, 1844, and had seven signers: Daniel Spencer (who had replaced Joseph Smith as Nauvoo mayor on August 10), Edward Hunter (a bishop in Nauvoo), Hiram Kimball, Orson Spencer, John Taylor, Joseph W. Coolidge, and Alpheus Cutler. The note was made due and payable on June 15, 1845.172
On October 24, 1844, the Mormons answered the pending suit in the Hancock County Circuit Court. Prior to that time, Bishop Hunter had delivered all four notes to Charles Ivins. The plaintiffs then requested dismissal of the suit without costs on October 29. However, the original suit languished for another year until its final dismissal on October 21, 1845, likely when the two notes payable to Ivins individually had been satisfied.173
At that point in the lawsuit, things became very confusing. On September 29, 1845, Ivins turned over the large $513.75 note to the Higbee brothers, and they signed a receipt and indemnity for it. By then Charles and James Ivins had been paid in full for a one-fourth interest in the Expositor and no longer had an interest in that note, which was then owned one-third each by the Laws, Fosters, and Higbees.
On October 3, 1845, Chauncey Higbee (through his attorney O. C. Skinner) filed suit in Carthage as an action “in assumpsit” (a type of nineteenth-century contract action) for $526.69 on October 3, 1845. It named the Mormon makers of the note, claiming the note was delinquent since it was due and payable more than three months prior to this date. However, Higbee brought his suit apparently on his own initiative, allegedly on behalf of all eight plaintiffs in the prior action, and again in the name of Charles Ivins & Co. Yet he did it solely for “the use of Chauncey Higbee.” That would have cut out the Fosters and Laws, who together owned two-thirds of that note. Higbee claimed that the note was for the printing press and type “sold & delivered by the plaintiffs to the defendants.” (Some of the documents refer to the press as being “sold” by the plaintiffs.) In addition, he alleged that defendants owed not only the face amount of the note, plus interest and costs, but also another $1,000 “on account,” apparently for money due for this property sold to the defendants while the defendants counterclaimed that the plaintiffs owed them the same amount for some unstated labor and services. All seven Mormon defendants were served with the new suit on October 14, 1845.174
The next month, in a supporting oath filed with the court, Higbee filed a writ of attachment reciting that all the defendants were “about to depart this state with the intention of having their personal effects removed without the limits of this state.” So they asked for an attachment of the defendants’ real property before they could flee to the west and posted an attachment bond for $1,052.38. On November 11, 1845, Hancock County Sheriff J. B. Backenstos duly attached several town lots and other tracts outside of Nauvoo, all owned by Hiram Kimball, one of the signers on the original note. The case was continued to the May 1846 term.175
Since Kimball was probably the only defendant with any substantial assets and was not then in the process of moving west from Illinois with the Saints, he had the most to lose. Acting through his attorney, Almon W. Babbitt, Kimball filed an answer to the complaint on May 20, 1846. He challenged the attachment on grounds that none of the plaintiffs then residing in Illinois would be able to pay the costs of an unsuccessful suit. He also counterclaimed for sizeable amounts well in excess of the $1,000 claimed by plaintiffs to be owed them and requested a change of venue to a county less prejudiced against the Mormons. Later that month, the court in Carthage vacated the prior attachment and granted a change of venue to nearby Henderson County.176
On June 3, 1846, the Henderson County Circuit Court, sitting in Oquawka, Illinois, entered a default judgment against the defendants, due to failure to appear after proof of service and the case having been called the usual three times. A jury was empaneled, and it awarded damages in the full amount of the note plus interest and costs, totaling nearly $600. Hancock County Sheriff Backenstos was directed to levy judgment against defendants’ assets, which was suspended when Kimball and Francis Higbee reached an agreement on July 3 to suspend the levy. Backenstos, however, had resigned as sheriff, effective as of July 4, so he returned the execution as unfulfilled on August 6, 1846. The judgment remained outstanding and unexecuted for the rest of that year.
Chauncey Higbee now treated the default judgment as his alone. On July 4, 1846, he sold it to a James Ward for $500, but did not record the assignment with the court.177 Meanwhile Kimball, apparently unaware of the assignment, had negotiated a separate settlement with William Law and Robert Foster (both having authority to represent their respective brothers). On July 16, he paid each of them enough to satisfy their entire interests in the Expositor. Although attorney Babbitt obtained releases from Law and Foster, he failed to file those with the court.178
On January 2, 1847, a new Hancock County Sheriff named Melgar Couchman tried to levy judgment against Kimball’s herd of some eleven horses, a two-horse buggy, and other goods and articles. Kimball immediately posted a delivery bond, and those properties were returned to him on January 4. After the sheriff next tried to levy against more liquid assets (auditors warrants) and accounts of Kimball, the Henderson County Circuit Court issued an injunction to stay this effort on February 20, 1847, as served on the sheriff by the Hancock County coroner on March 1, 1847.179
That injunction resulted from Kimball’s own lawsuit, filed in chancery on February 20, 1847, with the Henderson County Circuit Court. In that suit, Kimball exposed the Higbee scam. With his own lengthy complaint and various supporting affidavits and answers from William Law, Robert Foster, and Charles Ivins, Kimball alleged and ultimately proved that:
1. The $513.75 note was for equal benefit of the Laws, Fosters, and Higbees. Therefore, any statement that the note and default judgment were solely “for use of Chauncey L. Higbee” was fraudulent.
2. On July 16, 1846, Kimball had paid the Laws and Fosters in full and got releases to prove it.
3. Before moving to Utah in 1846, Edward Hunter had paid the Higbees $150 in cash—ten times more than they had invested in their combined interest in the Expositor.180
4. Higbee’s assignment to Ward was also fraudulent and void, done wholly without authority. Thereafter, Ward became solely a trustee for Higbee’s already satisfied interest.
Although Hiram Kimball obtained a temporary injunction on February 20, 1847, an interlocutory decree181 was not entered until the May 1848 term. After that, it took him another year to obtain a permanent injunction during the May 1849 term. That was because Charles Ivins, William Law, and Robert Foster had moved to Iowa and each had to be served by newspaper publication. Ultimately, all parties agreed to be responsible for their own legal fees and court costs except, they agreed, for James Ward—who had been cheated and was likely held harmless by the Higbees.182
In addition to his own legal fees and court costs, Hiram Kimball had paid a large sum of his own money to settle the matter. It is no wonder that he was not able to leave all of his and other business pursuits behind and migrate to Utah with the Saints until 1850.183
This five-year ordeal, in three separate civil courts, finally brought the Expositor affair to a very strange ending. However, none of these civil or criminal cases directly caused the confinement or death of Joseph and Hyrum Smith. Rather, it was a totally separate and unexpected legal charge.
The Treason Cases
On Tuesday, June 25, 1844, while the Smith brothers were distracted in another conversation prior to the Carthage hearing on the initial charge of riot, they were served with arrest warrants signed by Judge Robert F. Smith on a separate charge. Each warrant stated simply that it was for “treason against the government and the people of the State of Illinois,” such crime having been allegedly committed on June 19 when Joseph Smith declared martial law to protect Nauvoo and keep the peace.184 The warrants were premised on separate complaints signed by two private individuals, whom John Taylor described as “two worthless fellows whose words would not be taken for five cents.”185 The original complaints, which could have shed more light on those specific charges, have never been found.
The issue of treason never came up at the June 25 riot hearing. After supper, later that night, well after the riot hearing, Constable Bettisworth finally came to take Joseph and Hyrum into custody while they were still at the Hamilton hotel. They were shown a mittimus writ on the new charge of treason, also issued by Justice Robert F. Smith. That writ was directed to the jailer and authorized incarceration of the Smiths. It recited that both Smiths had been brought before him as a justice of the peace, although that had not happened. Treason was a capital crime entailing mandatory incarceration and for which no bail was feasible. Unlike the charge of riot, this was no minor accusation. The penalty in Illinois for treason was death by hanging.186
As the Smiths were hustled off to jail, their lawyers and John Taylor vigorously objected to Governor Ford. But he refused to interfere with the judicial process—agreeing with Justice Robert Smith that the defendants would be personally safer in jail than at the hotel.187
The next day, Wednesday, June 26, Joseph met in person with Governor Ford at the jail. They renewed their debate on the same issues raised in their exchange of letters the preceding week. Joseph again sought a return to Nauvoo and expressed willingness to be tried on this new charge before any court outside of Carthage. He expressed concern for their safety, but Ford repeated his pledge of full protection so long as they remained in jail. Ford also said that if he decided to visit Nauvoo the next day, he would take Joseph with him.188
Later that same day, the Smiths were summoned to court for their hearing on the treason charge. They feared for their own safety, so en route to court, Joseph “politely locked arms with the worst mobocrat he could see” and used him as a shield.189 At their one and only treason hearing, Joseph’s attorneys requested a one-day delay to bring witnesses from Nauvoo and to prepare their case. Justice Smith agreed and set the trial for noon the next day, June 27. The prisoners were remanded without bail and were now considered legally incarcerated. Joseph’s attorney James W. Woods said that after the hearing, Robert Smith unilaterally changed the trial date to Saturday, June 29, without any prior notice to defendants or their counsel. This ensured that they would remain incarcerated for three more days and nights.190
The state had five attorneys, led by O. C. Skinner, who had earlier performed some legal services for Joseph. In 1845, he would serve as co-counsel for the accused assassins of Joseph and Hyrum, and in 1846 he would represent Chauncey Higbee in his sham Expositor civil suit discussed above. Other state counsel in the treason matter included Thomas Morrison (the magistrate who had actually issued the first riot warrant on June 12), Thomas Sharp (the Mormon-hating editor of the Warsaw Signal), Chauncey Higbee, and Sylvester Emmons (editor of the Expositor). Joseph was represented by two attorneys, Hugh T. Reid and James W. Woods, from Fort Madison and Burlington, Iowa.191 Joseph checked with an often-used Mormon lawyer Almon W. Babbitt but was told that he had just been hired by the state.192 So Joseph’s last letter on earth was sent via Dan Jones on June 27 to request expert legal services from O. H. Browning, the renowned Quincy attorney who had helped Joseph previously in an extradition case before Judge Stephen A. Douglas.193 The matter reached its tragic end before the letter reached Browning. Like Skinner, he also defended Joseph’s accused killers the next year.
Joseph spent Thursday, June 27, preparing to defend against the treason case. He gave a long list of witnesses to Cyrus Wheelock, who smuggled a pistol into the jail inside his coat. Meanwhile, Ford did go to Nauvoo, but without Joseph. Instead, he took the McDonough County troops that were “most friendly to the prisoners” and disbanded the rest (about 1,300) just outside of town.194 The Carthage Greys were left to guard the jail and gave no resistance to the mob that stormed the jail just after 5 p.m. Before sundown that same day, both Smiths were dead—just as Frank Worrell, the Carthage Greys’ officer of the day charged with guarding the Smiths, had predicted: “I can prophesy better than old Joe, for neither he nor his brother, nor anyone who will remain with them will see the sun set today.”195
This prophecy was only partially fulfilled. Hyrum was shot through the door, the ball striking him on the left side of his nose. Joseph’s final, fatal move was to leap from the Carthage jail window. Four balls struck him, from inside and outside the jail. “Landing on his left side, he struggled to sit up against the curb of a well and died within seconds.”196 John Taylor was seriously wounded but survived the massacre. Willard Richards somehow escaped serious harm.197 The two survivors helped name sixty potential assassins recognized in the mob that assembled at the jail. Of these, nine were indicted and five were tried for the murder of Joseph Smith one year later in Carthage.198 All were acquitted for lack of evidence. The Nauvoo Neighbor newspaper carried a brief notice of the acquittal and “referred the case to God for a righteous judgment.”199
What about that charge of “treason”? How could the Smiths possibly have been regarded as traitors? Governor Ford consistently claimed that Joseph and Hyrum Smith (both officers in the Nauvoo Legion) had committed treason by, among other things, mobilizing the Nauvoo militia, declaring martial law, and arresting some offenders—all without Ford’s consent.200
But what, exactly, was considered to be treason in 1844? This crime was taken so seriously by our nation’s founders that it was defined in the United States Constitution. Article III, Section 3, reads: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”201 The Illinois Constitution contained similar wording.
In the 1807 federal Aaron Burr conspiracy cases brought by Thomas Jefferson against his own former vice president and Burr’s associates, Chief Justice John Marshall of the U.S. Supreme Court first interpreted the federal definition of treason as requiring the accused to be engaged in some degree of actual hostile warfare. Then Marshall held that to be found a traitor, one must have actually participated in the levying of war with some “overt act,” as proven by two witnesses to that same act. Mere words were not enough, no matter how inflammatory or conspiratorial they may be.202 Having served as an Illinois Supreme Court justice thirty years after this decision, Ford and others must have known this. So how was it even remotely possible that people could have considered the Smiths to be guilty of treason?
In his History of Illinois, Ford specifically asserted: “The overt act of treason charged against them consisted in the alleged levying of war against the State by declaring martial law in Nauvoo, and in ordering out the legion to resist the posse comitatus.”203 Thus, Ford was claiming that the act of declaring martial law and ordering out the Nauvoo Legion to resist a body of state militia constituted treason. His rationale was flawed, on all counts.204
First, there was no state or federal law in 1844 that defined martial law or construed it as any form of treason. In practice, martial law is a temporary replacement of civilian with military authority as an essential police power—normally done when civilians are unable to maintain order during a natural disaster, severe civil unrest, or other emergency.205 In his June 18 declaration of martial law, Joseph registered “fear that a mob is organizing to come upon this city, and plunder and destroy said city, as well as murder the citizens.”206 To Joseph, the Legion was being mobilized to protect the city and keep the peace, not to resist any state authority.
Second, even if Joseph’s action was done with the intent to resist a duly organized posse comitatus, there is no precedent construing that to be an act of treason, even though mobilizing a militia and declaring martial law certainly extend considerably beyond the “inflammatory or conspiratorial” words mentioned by Marshall. There simply is no concept of “constructive treason” in American law. There must be some actual warfare.207
Third, even though there were a number of other officially organized regiments of the Illinois militia in Hancock County at this time, the Nauvoo Legion did not engage any of them. On June 22, Governor Ford sent his demand letter to Nauvoo that included some complaints about martial law there. Immediately upon receiving Ford’s letter, Joseph wrote back that he had already disbanded the Nauvoo Legion. Thus, there existed little or no overlap between the two bodies of militia—the Nauvoo Legion and the McDonough County troops Ford took with him to Nauvoo—during the times each was activated.208
Finally, addressing Ford’s charge that some persons in Nauvoo had been unlawfully arrested under martial law, Joseph claimed that no one had been arrested without good cause and that the few persons detained under martial law had all been released by the time he deactivated the Legion.209
The most belligerent apostates posed a less secular view of “treason.” Mormon Dan Jones testified that on June 25, he overheard Wilson Law state that one of his many charges against Joseph Smith was that the Mormons were setting up a political kingdom with Joseph as its king, citing Daniel 2:44.210 Jones also heard conspirators saying that “they had 18 accusations against Joseph, and as one failed, they would try another,” to keep him detained. Jones heard Joseph Jackson say that they had “worked too hard to get old Joe to Carthage to let him get out of it alive.”211
One factor remained clear: treason was a capital charge for which there could be no bail.212 That charge effectively kept both Smiths in jail until they could be killed. The tactic of charging them with treason (and thus denying them bail) worked well enough in Missouri to incarcerate them for nearly six months, until virtually all Mormons were driven from that state. And in Illinois, it worked well enough to facilitate the death of both Smiths.
Despite the lack of legal grounds to charge them with treason, Ford persistently argued that Joseph and Hyrum had indeed committed treason against the state. He used this line of defense, both in speeches and in his written History of Illinois, as justification for holding them in custody, where they were killed.213
Of course, with the deaths of Joseph and Hyrum Smith, all criminal charges against them evaporated. One year later, however, their enemies revived similar charges against other Mormon leaders.
On September 15, 1845, a second treason case was filed by Thomas Sharp, the two Higbees, and Levi Williams against several Mormon leaders. Writs, again signed by Robert F. Smith, were served by Constable Michael Barnes and his brother from Carthage. According to the journal of Heber C. Kimball, the entire Quorum of the Twelve and some thirty other Nauvoo leaders went to Carthage on September 24 for a judicial hearing. During a midday court recess, they visited the jail for the first time since the June 1844 martyrdom and for the last time before they fled Illinois for the West. Hosea Stout’s journal noted his “feelings of horror” at inspecting the “blood on the floor” of Carthage Jail and marks still visible of “where the balls had penetrated.”214
The case came up in the early afternoon against William Clayton and eleven others. According to historian James Allen, “In a kind of comic opera proceeding, the sole witness against them confessed that his affidavit was sworn out on the basis of rumor.”215 There being no cause of action, the court discharged all defendants and dismissed the case. This charge of treason was just as baseless as the one that imprisoned Joseph and Hyrum in June. Within a few months, those same leaders and most Latter-day Saints had been driven out of Illinois—replicating their expulsion from Missouri in 1838–39.
During his initial prophetic calling, while still in his teenage years, Joseph Smith was told that his name “should be had for good and evil . . . among all people.”216 This prophecy was partly played out in cases and courtrooms from his youth until the day of his murder in June 1844. He endured over two hundred lawsuits during the fifteen years of his most active ministry (from 1829 to 1844). These included at least eighty cases as a defendant, of which approximately fifty were reportedly criminal matters. In the normal human experience, defending two or three lawsuits in a lifetime can create a great deal of stress. A defendant must be thoroughly devoted to the case in order to avoid potentially catastrophic losses of resources, liberty, and even life itself. The fact that Joseph was never convicted of any serious criminal offense,217 despite often being tried in venues infected with serious prejudice, is a credit not only to him but also to the surprising efficacy of rough frontier justice.218
During the Prophet’s last days, however, sensing that no objective judge or jury would convict him if he were able to stand trial, his enemies acted to hold him in jail until they had achieved their purposes. The scene that tragically played out in the hostile, unprotected venue of Carthage, where Joseph and Hyrum Smith were murdered in June of 1844, was followed by the mass exodus of most Mormons from Illinois.
The eventual expulsion of the main body of Saints from Illinois opened the way for the Mormon pioneers to help lead the nineteenth-century westward movement and settle much of the vast, uncharted western territory. However, in that same sense, the pioneer epoch also partly resulted from an abuse of legal process, both during and after the lifetime of Joseph Smith. Thus, while the rule of law can engender many great, long-term positive consequences, it can also enable some devastating short-term impacts when it is abused, most notably as befell Mormonism’s key founding figure.