Volume 6 Chapter 30
Arrest of Joseph and Hyrum Smith on a Charge of Treason—False Imprisonment—Elder Taylor's Protest—False Imprisonment.
The Governor's Pledge of Protection.
Tuesday, June 25, 1844.—This morning the prisoners voluntarily surrendered themselves to the constable, Mr. Bettisworth, who held the writ against them. The Governor was at headquarters in person, and had pledged his own faith and the faith of the state of Illinois, that the Smiths and other persons should be protected from personal violence, and should have a fair and impartial trial, if they would surrender themselves to be dealt with according to law. During the Governor's stay in Carthage, he repeatedly expressed to the legal counselors of the Smiths his determination to protect the prisoners, and to see that they should have a fair and impartial examination.
The Arrest for Treason.
At 8 A.M. President Smith had an interview with William G. Flood of Quincy, U. S. Receiver of Public Moneys. While in conversation with him, Constable David Bettisworth arrested Joseph for treason against the state of Illinois, with the following writ, which had been granted on the oath of Augustine Spencer:
Writ of Arrest on the Charge of Treason—Joseph Smith.
State of Illinois,
City of Nauvoo. ss
The people of the State of Illinois, to all sheriffs, coroners and constables of said state greeting:
Whereas complaint has been made before me, one of the justices of the peace in and for said county aforesaid, upon the oath of Augustine Spencer, that Joseph Smith, late of the county aforesaid, did, on or about the nineteenth day of June. A. D. 1844, at the county and state aforesaid, commit the crime of treason against the government and people of the State of Illinois aforesaid.
These are therefore to command you to take the said Joseph Smith if he be found in your county, or if he shall have fled, that you pursue after the said Smith into another county within this state, and take and safely keep the said Joseph Smith, so that you have his body forthwith before me to answer the said complaint and be further dealt with according to law.
Given under my hand and seal this 24th day of June, A. D. 1844.
R. F. Smith, J. P.
Hyrum Smith was also arrested at the same time for treason on the same writ, granted on the affidavit of Henry O. Norton:
Writ of Arrest for Treason—Hyrum Smith.
State of Illinois,
Hancock County. ss
The people of the State of Illinois, to all sheriffs, coroners and constables, greeting:
Whereas complaint has been made before me, one of the justices of the peace, in and for the county of Hancock, upon the oath of one Henry O. Norton, that one Hyrum Smith, late of the county of Hancock and state of Illinois, did, on the 19th day of June, 1844, commit the crime of treason against the government and people of the state of Illinois aforesaid.
These are therefore to command you to take the body of the said Hyrum Smith, if he be found in your county, or if he shall have fled that you pursue after the said Hyrum Smith into any county within this state, and take and safely keep the said Hyrum Smith, so that you have his body forthwith before me, to answer unto the said complaint, and be further dealt with according to law.
Given under my hand and seal, this 24th day of June. 1844.
R. F. Smith, J. P.
Governor Ford's Speech to the Troops.
8:30 A.M.—Governor Ford called all the troops and ordered them to form a hollow square on the public ground near the Court House; and when formed, he mounted an old table, and addressed them in a most inflammatory manner, exciting the feelings of indignation against Generals Joseph and Hyrum Smith which were already burning in their breasts, occasioned by the falsehoods and misrepresentations that were in circulation, giving his assent and sanction to the rumors that had gathered them together, and stating that although they were dangerous men in the community, and guilty of all that they might have alleged against them, still they were in the hands of the law, which must have its course. He continued speaking twenty or thirty minutes.
The Prophet's Request for an Interview with Gov. Ford.
9:15 A.M.—The Governor came in and invited Joseph to walk with him through the troops. Joseph solicited a few moments, private conversation with him, which the Governor refused. While refusing, the Governor looked down at his shoes, as though he was ashamed. They then walked through the crowd with Brigadier-General Miner R. Deming and Dr. Richards, to General Deming's quarters. The people appeared quiet until a company of Carthage Greys flocked around the doors of General Deming in an uproarious manner, of which notice was sent to the Governor. In the meantime the Governor had ordered the McDonough troops to be drawn up in line for Joseph and Hyrum to pass in front of them, they having requested that they might have a clear view of the Generals Smith. Joseph had a conversation with the Governor for about ten minutes, when he again pledged the faith of the state that he and his friends should be protected from violence.
Robinson, the postmaster, said, on report of martial law being proclaimed in Nauvoo, he had stopped the mail and notified the Postmaster-General of the state of things in Hancock county.
The Prophet Presented to the Troops.
From the General's quarters Joseph and Hyrum went in front of the lines, in a hollow square of a company of Carthage Greys. At seven minutes before ten they arrived in front of the lines, and passed before the whole, Joseph being on the right of General Deming, and Hyrum on his left, Elders Richards, Taylor and Phelps following. Joseph and Hyrum were introduced by the Governor about twenty times along the line, as General Joseph Smith and General Hyrum Smith, the Governor walking in front on the left. The Carthage Greys refused to receive them by that introduction, and some of the officers threw up their hats drew their swords and said they would introduce themselves to the damned Mormons in a different style. The Governor mildly entreated them not to act so rudely, but their excitement increased. The Governor, however, succeeded in pacifying them by making a speech, and promising them that they should have "full satisfaction." General Smith and party returned to their lodgings at five minutes past ten.
Revolt of the Carthage Greys.
10:30.—News reached Joseph at the hotel that the Carthage Greys had revolted, and were put under guard by General Deming. Joseph told all his friends to stay in the two rooms occupied by them in the hotel.
10:50.—Quietness was apparently restored among the Carthage Greys.
11:15.—News arrived that the Warsaw troops were near Carthage, and had come of their own accord.
Mr. Prentice, U. S. Marshal for Illinois, called to see Joseph.
Threats of Apostates to Plunder Nauvoo.
12 minutes before 1.—Intelligence was given to Joseph that the Laws, Higbees, Fosters and others, were going to Nauvoo to plunder. To Governor called at the door with some gentlemen, when Joseph informed him of what he had heard, and requested him to send a guard to protect the city of Nauvoo.
Willard Richards wrote a letter to his wife.
1:30 P.M.—After dinner, Mark Aldrich of Warsaw called to see Joseph.
2:30.—The Governor communicated that he had ordered Captain Singleton with a company of men from McDonough county, to march to Nauvoo to co-operate with the police in keeping the peace; and he would call out the Legion, if necessary.
Joseph wrote to Emma as follows:
Letter: The Prophet to Emma Smith—Governor Ford Going to Nauvoo.
Carthage, June 25th, 1844.
2:30 o'clock P.M.
Dear Emma.—I have had an interview with Governor Ford, and he treats us honorably. Myself and Hyrum have been again arrested for treason because we called out the Nauvoo Legion; but when the truth comes out we have nothing to fear. We all feel calm and composed.
This morning Governor Ford introduced myself and Hyrum to the militia in a very appropriate manner, as General Joseph Smith and General Hyrum Smith. There was a little mutiny among the Carthage Greys, but I think the Governor has and will succeed in enforcing the laws. I do hope the people of Nauvoo will continue pacific and prayerful.
Governor Ford has just concluded to send some of his militia to Nauvoo to protect the citizens, and I wish that they may be kindly treated. They will co-operate with the police to keep the peace. The Governor's orders will be read in the hearing of the police and officers of the Legion, as I suppose.
3 o'clock.—The Governor has just agreed to march his army to Nauvoo, and I shall come along with him. The prisoners, all that can, will be admitted to bail. I am as ever,
The Prophet's Warning to Rockwell.
Joseph also sent a message to Orrin P. Rockwell not to come to Carthage, but to stay in Nauvoo, and not to suffer himself to be delivered into the hands of his enemies, or to be taken a prisoner by any one.
It was reported by Israel Barlow that he had heard resolutions of the Warsaw troops read, to the effect that they would return to Warsaw at 3 P.M., then go to Golden's Point on Thursday, and thence to Nauvoo.
The Prophet's Interview with Militia Officers.
Several of the officers of the troops in Carthage, and other gentlemen, curious to see the Prophet, visited Joseph in his room. General Smith asked them if there was anything in his appearance that indicated he was the desperate character his enemies represented him to be; and he asked them to give him their honest opinion on the subject. The reply was, "No, sir, your appearance would indicate the very contrary, General Smith; but we cannot see what is in your heart, neither can we tell what are your intentions." To which Joseph replied, "Very true, gentlemen, you cannot see what is in my heart, and you are therefore unable to judge me or my intentions; but I can see what is in your hearts, and will tell you what I see. I can see that you thirst for blood, and nothing but my blood will satisfy you. It is not for crime of any description that I and my brethren are thus continually persecuted and harassed by our enemies, but there are other motives, and some of them I have expressed, so far as relates to myself; and inasmuch as you and the people thirst for blood, I prophesy, in the name of the Lord, that you shall witness scenes of blood and sorrow to your entire satisfaction. Your souls shall be perfectly satiated with blood, and many of you who are now present shall have an opportunity to face the cannon's mouth from sources you think not of; and those people that desire this great evil upon me and my brethren, shall be filled with regret and sorrow because of the scenes of desolation and distress that await them. They shall seek for peace, and shall not be able to find it. Gentlemen, you will find what I have told you to be true."
Law Cannot Reach Them—Powder and Ball Must.
12 minutes to 4.—Report came to Joseph that William and Wilson Law, Robert D. Foster, Chauncey L. Higbee and Francis M. Higbee had said that there was nothing against these men; the law could not reach them but powder and ball would, and they should not go out of Carthage alive.
Arraigned on the Expositor Affair.
Joseph, Hyrum and thirteen others, were taken before Robert F. Smith, a justice of the peace residing in Carthage (he being also captain of the Carthage Greys) on the charge of riot destroying the printing press of the Nauvoo Expositor.
It is worthy of notice here, that when the defendants went before Esquire Wells, the prosecution objected, and insisted that they should be taken before the justice who issued the writ—viz., Thomas Morrison, and that Governor Ford had also stated in his letter to General Joseph Smith that he must go before the justice in Carthage who issued the writ. But when the prosecution had the defendants in their own power in Carthage, they could then ride over their own objections by taking them before another justice, who was known to be a greater enemy to the defendants than Justice Morrison, and moreover, before one who was not only a justice of the peace, but also the Military commander of a company of Carthage Greys, who had already been arrested for mutiny.
Chauncey L. Higbee, one of the prosecutors, moved an adjournment.
H. T. Reid and James W. Woods on behalf of the defendants, objected to an adjournment, and said that the court was not authorized to take recognizance without their acknowledging their guilt, or having witnesses to prove it, and we admit the press was destroyed by order of the Mayor, it having been condemned by the City Council as a nuisance.
They read law to show that justices could not recognize without admission of guilt, and offered to give bail.
Mr. Reid stated that the law quoted by the prosecution belonged to civil, not criminal cases.
The prosecution insisted to have a commission of the crime acknowledged.
Prophet et. al. Bound over to Circuit Court.
After a good deal of resistance on the part of the prosecution, court asked if the parties admitted that there was sufficient cause to bind over, and the counsel for the defense admitted there was, and offered to enter into cognizance in the common form, in order to prevent, if possible, any increase of excitement.
The Sureties for the Prophet.
5 P.M.—Court acknowledged the admission and ordered recognizances whereupon Joseph Smith, Hyrum Smith, John Taylor, William M. Phelps, John P. Greene, Stephen C. Perry, Dimick B. Huntington, Jonathan Dunham, Stephen Markham, Jonathan H. Holmes, Jesse P. Harmon, John Lytle, Joseph W. Coolidge, David Harvey Redfield, and Levi Richards gave bonds, with John S. Fullmer, Edward Hunter, Dan Jones, John Benbow, and other unexceptionable sureties, in the sum of $500 for each of the defendants, total $7,500, for their appearance at the next term of the Circuit Court for Hancock county.
It was evident that the magistrate intended to overreach the wealth of the defendants and their friends, so as to imprison them for want of bail; but it happened that there was strength to cover the demand, for some of the brethren went security to the full extent of their property; and Justice Smith adjourned his court over, and left the court house without calling on Joseph and Hyrum to answer to the charge of treason, or even intimating to those prisoners, or their counsel that they were expected to enter into an examination that night.
Captain Smith, the only magistrate who could grant subpoenas for witnesses, disappeared until a late hour, as if purposely to prevent the appearing of the defendant's witnesses, and in keeping with the conviction expressed by Joseph's enemies the previous day, that the law cannot touch them, but that powder and bail will.
Another Warrant Sought—Daniel's Kingdom and Treason.
About 6:30 P.M.—Dan Jones heard Wilson Law, whilst endeavoring to get another warrant against Joseph Smith for treason, declare that while he (Mr. Smith) was once preaching from Daniel 2nd chapter, 44th verse, said that the kingdom referred to was already set up, and that he was the king over it. He also heard Joseph H. Jackson, and other leaders of the mob, declare that the had eighteen accusations against Joseph and as one failed, they would try another to detain him there, and that they had had so much trouble and hazard, and worked so hard in getting him to Carthage, that they would not let him get out of it alive. Jackson pointed to his pistols and said, "The balls are in there that will decide his case." Jones immediately went up stairs to Joseph and informed him what he had heard Jackson say.
About 7:30 P.M.—Dr. Levi Richards and most of the brethren, after they had signed the bonds, left for Nauvoo when Joseph and Hyrum went into the Governor's room and spoke with him, as Governor Ford had promised them an interview. After a few moments' conversation, the Governor left them to order the captain of the guard to give the brethren some passes. They then went to supper.
Illegal Imprisonment of the Smith Brothers.
8 P.M.—Constable Bettisworth appeared at the lodgings of Joseph and Hyrum, and insisted that they should go to jail. Joseph demanded a copy of the mittimus, which was refused. Messrs. Woods and Reid, as counsel, insisted that the prisoners were entitled to be brought before a justice of the peace for examination before they could be sent to jail. The constable, to their surprise, then exhibited the following mittimus:
The False Mittimus.
State of Illinois,
Hancock County. ss.
The people of the State of Illinois to the keeper of the jail of said County, Greeting:
Whereas Joseph Smith and Hyrum Smith, of the county aforesaid, have been arrested upon oath of Augustine Spencer and Henry O. Norton, for the crime of treason, and have been brought before me as a justice of the peace in and for the said county, for trial at the seat of justice thereof, which trial has been necessarily postponed by reason of the absence of the material witnesses—to wit, Francis M. Higbee and others. Therefore, I command you, in the name of the people, to receive the said Joseph Smith and Hyrum Smith into your custody in the jail of the county aforesaid, there so remain until discharged by due course of law.
Given under my hand and seal this 25th day of June, A. D. 1843.
(Signed) R. F. Smith J. P.
Joseph remonstrated against such bare-faced, illegal, and tyrannical proceedings, but the constable still insisted that they should go to jail. Lawyer Woods requested the officer to wait until he could see Governor Ford, and was told by Bettisworth that he could only wait five minutes.
Governor Ford Refuses to Interfere with Illegal Proceedings.
Joseph and Hyrum again remonstrated, and the constable waited until about nine o'clock, when they heard by Mr. Wood that the Governor did not think it within the sphere of his duty to interfere, as they were in the hands of the civil law, and therefore he had not the power to stay process, of the due course of law, and that he could not interrupt a civil officer in the discharge of his duty.
Governor Ford knew this [proceeding] was illegal, (for he had formerly been an associate-justice of the Supreme Court of the state) and when he was appealed to by Captain Robert F. Smith to know what he must do, as he had found his mittimus as a magistrate was illegal, and therefore that it was a false committal, Governor Ford replied, "You have the Carthage Greys at your command." Captain Smith therefore commanded his "Greys" to execute and carry into effect his illegal mittimus as a magistrate, thus practically blending the civil and military in the same person at the same time; and the prisoners were violently and illegally dragged to jail without any examination whatever, while his Excellency was in the adjoining room from that from which they were thus taken. So much for his professions that the law must be executed.
Thus a justice of the peace acting as a military officer also by virtue of his commission as such, orders his command to appear under arms and to incarcerate the prisoners whom he had just before ordered to commit to jail by mittimus without having them brought before him for examination; and the Governor, having been himself at one time a judge upon the bench, knew and well understood the illegality of the above proceedings.
He also well knew that military power and [civil] authority had been used by one and the same person, and yet he, acting at that time as Commander-in-Chief, which gave him the supervision over all his officers, and in fact made him responsible for all their acts and movements, refused to interfere when requested by the prisoners to interpose his authority in their behalf against an illegal civil process, and also refused to countermand the illegal, oppressive and unofficer-like order of one of his captains.
Moreover, having taken the oath of office, as Governor of the state of Illinois, he was by virtue of that oath bound to see the laws faithfully executed, and not, as in this instance, see them violated and trodden under foot, and even prompt one of his officers in his lawless course. Thus he violated his solemn pledges and oath of office.
Elder Taylor's Remonstrance with Governor Ford.
Elder John Taylor says, "As I was informed of this illegal proceeding, I went immediately to the Governor and informed him of it; whether he was apprized of it before or not I do not know, but my opinion is that he was. I represented to him the character of the parties who had made oath, the outrageous nature of the charge, the indignity offered to men in the position which they [the prisoners] occupied, and that he knew very well that it was a vexatious prosecution, and that they were not guilty of any such thing."
The Governor replied that he was very sorry that the thing had occurred; that he did not believe the charges, but that he thought that the best thing to be done in the premises was to let the law take its course.
"I then reminded him that we had come out there at his instance, not to satisfy the law, which we had done before, but the prejudices of the people in relation to the affair of the press; that we had given bonds, which we could not by law be required to do, to satisfy the people at his instance, and that it was asking too much to require gentlemen in their position in life to suffer the degradation of being immured in a jail at the instance of such worthless scoundrels as those who had made this affidavit.
"The Governor replied that it was an unpleasant affair, and looked hard, but that it was a matter over which he had no control, as it belonged to the judiciary; that he, as the executive could not interfere with their proceedings, and that he had no doubt but that they would be immediately dismissed.
"I told him that we had looked to him for protection from such insults, and that I thought we had a right to do so from the solemn promises he had made to me and Dr. Bernhisel in relation to our coming without a guard or arms; that we had relied upon his faith and had a right to expect him to fulfill his engagements, after we had placed ourselves implicitly under his care, and complied with all his requests, although extra-judicial.
"He replied that he would detail a guard, if we required it, and see us protected, but that he could not interfere with the judiciary.
"I expressed my dissatisfaction at the course taken, and told him that if we were to be subject to mob rule, and to be dragged contrary to law into prison, at the instance of every infernal scoundrel whose oath could be bought for a dram of whiskey, his protection availed very little, and we had miscalculated his promises.
"Seeing there was no prospect of redress from the Governor, I returned to the room and found the Constable, Bettisworth, very urgent to hurry Brothers Joseph and Hyrum to prison, whilst the brethren were remonstrating with him.
"At the same time a great rabble was gathered in the streets and around the door, and from the rowdyism manifested, I was afraid there was a design to murder the prisoners on the way to the jail.
Elder Taylor Takes Independent Action.
"Without conferring with any person, my next feeling was to procure a guard, and seeing a man habited as a soldier in the room, I went to him and said, "I am afraid there is a design against the lives of the Messrs. Smith, will you go immediately and bring your captain, and if not convenient, any other captain of a company, and I will pay you well for your trouble."
"He said he would, and departed forthwith, and soon returned with his captain, whose name I have forgotten 1 and introduced him to me.
"I told him of my fears, and requested him immediately to fetch his company. He departed forthwith, and arrived at the door with them, just as the time that the constable was hurrying the brethren downstairs.
"A number of brethren went along, and one or two strangers, and all of us safely lodged in prison, remained there during the night."
As Esquire Woods went to the door he met Captain Dunn, with some twenty men, they having come to guard the prisoners in jail. Mr. Woods accompanied Governor Ford to (Captain) Justice Robert F. Smith, who gave as a cause for issuing the warrant of committal, that the prisoners were not personally safe at the hotel. Mr. Woods then requested the Governor to have a company of troops from some other county detailed to guard the jail.
In Carthage Jail.
Captain Dunn, with his company, escorted Joseph and Hyrum Smith from their lodgings, together with Willard Richards, John Taylor, John P. Greene, Stephen Markham, Dan Jones, John S. Fullmer, Dr. Southwick, and Lorenzo D. Wasson, to the jail. Markham had a very large hickory cane, which he called "the rascal-beater." Dan Jones had a smaller walking-stick, and they walked on either side of Joseph and Hyrum, keeping off the drunken rabble, who several times broke through the ranks.
They were received by the jailer, Mr. George W. Stigall, and put into the criminal's cell; but he afterwards gave them the debtors' apartment, where the prisoners and their friends had amusing conversations on various interesting subjects, which engaged them till late. Prayer was offered, which made Carthage prison into the gate of heaven for a while. They laid promiscuously on the floor, where they all slept from 11:30 until 6 A.M. of the 26th.
Counselor H. T. Reid, in his published statement, writes as follows: "The recitals of the mittimus, so far as they relate to the prisoners, having been brought before the justice for trial, and it there appearing that the necessary witnesses of the prosecution were absent, are wholly untrue, unless the prisoners could have appeared before the justice, without being present in person or by counsel; nor is there any law of Illinois which permits a justice to commit persons charged with crimes to jail, without examination as to the probability of their guilt."
1. This was captain Dunn, of Augusta township, who had been sent to Nauvoo a few days before to collect the state arms at Nauvoo, and who afterwards escorted the Prophet and his friends into Carthage.