Spencer McBride: The series of events surrounding the murder of Joseph and Hyrum Smith were informed by political, financial, and legal concerns, and they took place in a distinct cultural setting. And the thing about political, financial, and legal cultures is that they evolve over time. This means that for historians and other scholars seeking to make sense of the past, it is vital that we understand as well as we can the cultural contexts in which events occurred.
To this end, I met with President Dallin H. Oaks and Richard E. Turley Jr. in a recording studio in Salt Lake City. We were there to discuss the history of the martyrdom, to explore the laws and legal culture of the United States in 1844—and of Illinois in particular. Those laws and that culture provide invaluable historical context for understanding the martyrdom and its aftermath. Through his scholarship, President Oaks made monumental contributions to the academic understanding of that context.
In this, the final episode of the podcast series, we will go in greater depth about the legal context of the suppression of the Nauvoo Expositor, the settling of Joseph Smith’s estate, and the trial of the prophet’s accused assassins. You will hear extensive portions of the conversation we had, including reflections on the historical and spiritual significance of Joseph Smith. This is Road to Carthage: A Joseph Smith Papers Podcast, and I’m your host, Spencer McBride.
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Spencer McBride: Episode 8, “A Conversation with Dallin H. Oaks and Richard E. Turley Jr.”
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Spencer McBride: Dallin H. Oaks was ordained an apostle and set apart as a member of the Quorum of the Twelve Apostles in 1984. Since 2018, he has served as president of the Quorum of the Twelve Apostles and as first counselor in the First Presidency of the Church of Jesus Christ of Latter-day Saints. Prior to his service as a general authority in the church, President Oaks was the president of Brigham Young University. And prior to that, he had a successful legal career and taught law at the University of Chicago. His work as a professor included historical legal research that we will take a deeper dive into during this episode.
Richard E. Turley Jr., or Rick Turley, as you will hear us refer to him in this episode, came to the professional study of history from a legal background as well. He earned his law degree from Brigham Young University in 1985. Then, in 1986, Dallin H. Oaks recruited Rick to help lead what was then known as the church’s Historical Department. Throughout his distinguished career, Rick Turley has worked as managing director of the Church History Department, managing director of the Family History Department, and as assistant church historian.
Latter-day Saints today are quite familiar with President Oaks as a church leader. But what may surprise some is the extent of his legal research on the history of Joseph Smith and the church, including works he published on events surrounding the martyrdom. So, that’s where we started our conversation. I asked President Oaks how he found himself engaged in the study of the prophet’s legal history. His answer had to do with an internship and a famous case argued before the United States Supreme Court.
President Dallin H. Oaks: I was a law student intern in a firm that was known as the Kirkland Firm, and sitting in the library doing some research, I noticed on the top shelf, almost out of reach, a box that said Near v. Minnesota. Every law student knows that’s one of the most important cases ever decided by the United States Supreme Court, and I learned that Mr. Kirkland, the senior partner in the firm I was working for, was the man that won that case in the United States Supreme Court.
Spencer McBride: In 1931, the United States Supreme Court heard this landmark case. Here’s a brief summary:
A man had published a newspaper making anti-Semitic and conspiratorial claims about the city government of Minneapolis, Minnesota, and made wild accusations against three public officials. The newspaper incited violence, including two separate assassination attempts against one of the public officials criticized in its pages. The city and county took action against the newspaper. Citing a public nuisance law, they had the newspaper shutdown. The publishers appealed their case all the way to the Supreme Court, which is the highest legal authority in the United States.
President Dallin H. Oaks: So, here were the original papers in his law firm, and I pulled them off the shelf, and when I read the facts of that case, the facts of the case were almost identical to what happened in Nauvoo almost ninety years ahead of Near against Minnesota. And I said to myself, “There’s something here that ties directly into Mormon history,” and I wanted to know more about it, and that led me, when I left the law firm and became a professor of law and had time for and urgency for scholarly work, it led me into looking into the suppression of the Nauvoo Expositor, which led me into quite a bit of research on the prophet Joseph Smith’s legal affairs in and around Nauvoo, which we’ll be discussing today.
Spencer McBride: Now, the enduring significance of the case Near v. Minnesota to American law has to do with the application of the freedom of the press clause in the First Amendment of the United States Constitution. Prior to the American Civil War in the 1860s, the United States federal government did not apply the first ten amendments of the Constitution, or what Americans call the Bill of Rights, to the individual states. And even after the constitutional reform that followed the Civil War, it took decades for the federal government to start consistently enforcing the Bill of Rights on state matters. It was the case of Near v. Minnesota that marked a change in this enforcement. This means that in the United States during the 1840s, while Americans often celebrated the freedom of the press, the legal enforcement of that protection was not as consistent then as it would become almost a century later.
So, how does this relate to our understanding of the events that culminated in the martyrdom?
While it is natural for historians and others today to look at the suppression of the Nauvoo Expositor in 1844 with the twenty-twenty vision of hindsight and to see the series of events that it set in motion, as a young lawyer and law professor, President Oaks was more concerned with understanding the legal justification of the move. And his research suggested that the conclusions many had come to on this historical episode was informed by a legal context from a later time period and not on the legal context in which the Nauvoo City Council functioned in June 1844.
President Dallin H. Oaks: Even LDS scholars of freedom of the press were critical of Joseph Smith and the Nauvoo council for suppressing an obnoxious newspaper, the Nauvoo Expositor. And I was familiar with the fact that B. H. Roberts, in the history of the church I’d read, said the action of the city council was irregular under principles of freedom of the press, and later on, Homer Durham called the suppression “the grand Mormon mistake.” But my superficial examination that preceded a lot of research raised a question in my mind because both of those individuals, in their criticism, assumed that the freedom of the press provision in the United States Constitution, the Bill of Rights, applied in Nauvoo. In fact, it was only in 1931, when the United States Supreme Court decided Near v. Minnesota, that the traditional attitude that the Bill of Rights only applied to the federal government and did not apply to the states or city councils was reversed. So that I saw the criticism of those two men whom I esteemed so highly as being based on a law that didn’t apply in Nauvoo and wasn’t really established until almost ninety years later in that decision of the United States Supreme Court. The question that I set out to research was, what was the free speech and free press provision that governed the action of the city council in their suppression of an obnoxious newspaper? And the legality of that suppression under the existing law became one of the very first professional publications that I made myself. It was in the Utah Law Review of 1965.
Spencer McBride: We have already established in earlier episodes of this podcast series that the suppression of the Nauvoo Expositor was a catalyst in the events that led to the martyrdom of Joseph and Hyrum Smith. And President Oaks was clear in publishing his research on the subject and in discussing it with me and Rick Turley that his focus was on the legality of what the Nauvoo City Council decided to do about the Expositor, and not on the wisdom or prudence of that action. So, what did President Oaks conclude from his research about the Nauvoo City Council’s legal justification for suppressing the Nauvoo Expositor?
President Dallin H. Oaks: What I concluded, and here I quote from that Utah Law Review article, is that the “consequences [of the suppression of the Nauvoo Expositor] were disastrous to the Mormon leaders and that alternative means might have been employed cannot be doubted. Nevertheless, the common assumption of historians that the action taken by the city council to suppress the newspaper as a nuisance was entirely illegal is not well founded. Aside from damages for unnecessary destruction of the press, for which the Nauvoo authorities were unquestionably liable, the remaining actions of the council, including its interpretation of the constitutional guarantee of a free press, can be supported by reference to the law of their day.”
Rick, could you comment on the intended action of those who published this Nauvoo Expositor, and the intended action of the city council?
Richard E. Turley Jr.: I think it’s very clear from the context of the establishment of the Nauvoo Expositor press that the creators of the press intended to create a circumstance that would lead to violence and lead to the downfall of the prophet Joseph Smith. And because the Saints had experienced that type of violence previously, I think one of the great concerns in suppressing the Nauvoo Expositor was to prevent that kind of violence from erupting in Nauvoo.
And so, in fact, what happened is that it provided a group of vigilantes who were waiting for an excuse the spark they needed in this tinderbox environment to begin to work violence against the Latter-day Saints, and that ultimately led to the martyrdom of the prophet Joseph Smith and his brother Hyrum.
President Dallin H. Oaks: Your comment has introduced the research and the conclusions that I reached. It was quite clear that the city council had a good basis for fear that the contents of the Nauvoo Expositor would provoke mob action. A man named Elijah Lovejoy, who was an abolitionist whose name is well known to American history, had three different presses destroyed by mob action in Illinois in the ten years preceding this event. And in the fourth case, he was killed by a mob. And there were seven other recorded instances of mob violence against newspapers in other states in the 1830s and 1840s. I think it’s important to know that Joseph Smith and the city council did not react hastily or without careful study of the law of their day. The city council was very deliberate in its action. There were two days of debate and consulting of the foremost legal authorities of that time. The free speech guarantee that applied against a state action at that time included the words “being responsible for the abuse of the liberty.” That was only a guarantee against prior restraint. Once something had been published, the law provided, in that time, that the people who published something would be responsible for the legal consequences of what they published, without the protection of constitutional guarantees.
So, the Nauvoo council considered the Expositor a nuisance. A nuisance was something that created an aggravated, obnoxious circumstance in a community—like a decaying carcass. So they looked to the law and considered abating a nuisance, and that was the basis, after two days of the debate and study of the law, that they relied on in passing an ordinance directing the city authorities to go in and take the press and destroy the press, which would have made them subject for damages, but to take all the issues of the Expositor and burn them was not a violation of the free speech law of that day.
Spencer McBride: This was President Oaks’s entry into studying the legal history of Joseph Smith in and around Nauvoo. And that box of records that he saw on the shelf in his law firm—the records for the 1931 United States Supreme Court case of Near v. Minnesota—that was the spark of it all. The circumstances of that case were strikingly similar to the circumstances of the suppression of the Nauvoo Expositor in 1844, and they helped President Oaks as a young law intern to recognize how to understand that 1844 event in the legal context of its time.
But that was just the start of President Oaks’s examinations of the legal history surrounding the martyrdom and its aftermath. His legal training and research skills led him next to a study of Joseph Smith’s estate.
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Spencer McBride: I asked President Oaks how the subject of Joseph Smith’s personal finances and the disposition of his estate following the martyrdom caught his attention.
President Dallin H. Oaks: It’s a fascinating subject. And when I got into my research about early church events and about the prophet Joseph Smith, the fact that he had filed for bankruptcy, which was well known but with opinions differing on whether or not he obtained this relief from his pressing debts, and the legal effect of quite a few major rearrangements that were made in church finances before his death, including his appointment as trustee-in-trust for the church, separating his personal property, which as a matter of convenience had included a lot of church property as he arrived from his Missouri imprisonment. And all of that was attempting to be put in order, and so there are a lot of fascinating legal questions that came up, and I dabbled in quite a few of them.
Spencer McBride: So, President Oaks had a clear and established interest in these aspects of the history of the church in Nauvoo. And as a professor at the University of Chicago, he had a student willing and able to help with the research.
President Dallin H. Oaks: During this time of my service as a professor of law, I was pleased to have a bright third-year law student, Joseph I. Bentley, register for individual research under my direction. I suggested that he research whether the prophet Joseph Smith was ever discharged in bankruptcy. What he discovered in the official court records in the Federal Records Center in Chicago, augmented by our discoveries in state court records about the administration of the prophet’s estate, which hadn’t been publicized before, was a breakthrough in the understanding of many important subjects.
Spencer McBride: Rick Turley explained why Joseph Smith sought the legal protections of bankruptcy in the 1840s.
Richard E. Turley Jr.: I think that many members of the Church don’t know that Joseph Smith had filed for bankruptcy, and when they hear that, they are, as President Oaks said, uncertain about what happened in the case, and his research and the research of Brother Bentley, of course, made this very clear. The law can sometimes be very complex, and most people, particularly on the frontier, really didn’t understand how it operated. Joseph Smith made a good faith effort to obtain bankruptcy for really good reasons. He’d been persecuted relentlessly, and the debt that he bore was, in many cases, the debt of the church, and he was trying to do what was best, not just for himself, but for the church.
Spencer McBride: Yet, as President Oaks explains, he and Joseph Bentley found out that one debt in particular proved to be a sticking point in the bankruptcy proceedings.
President Dallin H. Oaks: That was the fascinating key discovery that we made as we researched the church and Joseph Smith’s legal involvement in this critical period. The key event was the prophet’s 1840 incurring of a debt of about $5,000 to the United States government to purchase an army surplus river steamboat. He did this to promote the economy of Nauvoo. His credit put the transaction over the top when he signed as guarantor. I might say that the people who are purchasing that steamboat were purchasing it from a lieutenant in United States Corps of Engineers named Robert E. Lee, who had been posted to St. Louis to help clear some navigational obstacles on the Mississippi River, and he was selling his equipment when Congress, in the depression of that year, declined to fund a continued effort. So, it’s an interesting fact that when the time came to seek Joseph Smith’s payment of the guaranteed debt, the person who wrote from Washington directing that that be done was Robert E. Lee, by then a captain in the US Corps of Engineers.
Spencer McBride: It was not long after the purchase of the steamboat that the men operating the boat accidently wrecked it on a series of rapids in the Mississippi River. The boat and its operations were to be the primary source of repaying the debt of its purchase. Now the boat was lost—along with its earning powers. Yet, the debt remained.
President Dallin H. Oaks: The interesting thing about that 1841 steamboat debt is that that effort of the United States government to charge Joseph Smith and collect the amount from him persisted for ten years and ultimately upset many important transactions.
In 1840, just after signing that document, the prophet began efforts to reorganize the church’s business affairs in rapidly growing Nauvoo. As a very important part of that, he and Emma signed a deed transferring 239 Nauvoo lots totaling three hundred acres that were previously held in his personal name to Joseph Smith as trustee-in-trust for the church. That particular transaction is traceable for the whole eleven-year period.
Now, bankruptcy comes into the picture at this time because in the period 1841 to 1842, frontier Illinois was part of the serious nationwide recession. People were not paying their debts, including people who had incurred debts to purchase lots in Nauvoo, and Joseph and the other church leaders were caught in the middle because the people they had purchased the land from—eastern developers—were pressing them for payment, and there weren’t a lot of solvent payments going on anywhere in the country at that time.
Congress passed the first bankruptcy law in the nation, effective February 1, 1842, right in the middle of this period. And as it became effective, lawyers came to Nauvoo to promote the relief that was obtainable under this new bankruptcy law. And numerous church leaders, including Joseph and Hyrum and Sidney Rigdon and others, were persuaded to file for bankruptcy for the obvious need, and most of them were promptly—within a few months—discharged in bankruptcy.
Spencer McBride: This is where the steamboat debt to the United States government factored into the proceedings.
President Dallin H. Oaks: The result was a series of delays caused by objections from the United States, a key creditor under the steamboat debt. In that situation, not seeing a good chance to have their debt paid, the attorneys who looked after the interests of the United States objected to Joseph’s discharge in bankruptcy, relying on John C. Bennett, who had recently been disclosed as an adulterer and excommunicated from the Church. His allegations that Joseph’s 1841 conveyance of property to himself as trustee-in-trust was an attempt to defraud creditors, and these claims were tied up in politics and court delays and were still unresolved when Joseph was murdered two years later. So, lots of people were discharged in bankruptcy—many church leaders and even the lawyers who represented them in the bankruptcy proceeding were busy getting themselves discharged. All of that comes out in our research.
Spencer McBride: And the steamboat debt endured in the settling of Joseph Smith’s estate following his death. As we mentioned in episode 5, administrators of the estate had concluded the disposition of much of the property of Joseph Smith and the church by the time most of the Saints were following Brigham Young in the exodus from Nauvoo. But the steamboat debt that President Oaks described prevented the matter from being fully closed.
President Dallin H. Oaks: Finally, Joseph Bentley and I discovered another legal proceeding that resolved the problem. In an effort to increase the assets of the estate to pay the steamboat debt, in August 1850, the United States filed a new case in the federal district court. This filing preempted the state probate proceedings in Carthage, and the federal court proceeded promptly with a final decree only five months later in January 1851, ten years after the steamboat debt was initiated.
Now, despite allegations made by the United States against Joseph Smith, the court made no finding of fraud. The prophet Joseph Smith came out of this highly contested circumstance with allegations that he had made fraudulent conveyances and so on. There was no finding whatever that implicated the moral integrity of Joseph Smith.
Spencer McBride: So how did the court rule in 1851? It ruled that, pursuant to an Illinois statute limiting a trustee-in-trust to holding forty-five acres of land on behalf of a church, that much of the church property that Joseph Smith held in that capacity should be considered personal property for the purpose of the disposition of the estate. Historical sources are unclear about all of the people with whom Joseph consulted with in setting up a status as trustee-in-trust and receiving conveyances of land from in that role, but the legal advice was bad advice.
President Dallin H. Oaks: As a consequence of that bad legal advice that overlooked this law aimed at trustees-in-trust, the 1841 deed of church properties to Joseph Smith as trustee for the church was clearly ineffective.
Spencer McBride: What did this mean for that property and Joseph Smith’s estate?
President Dallin H. Oaks: As such, it was still subject to paying the lien the United States obtained by its 1842 judgment for the steamboat debt. So it was that these complicated proceedings concluded in 1851 with this division of the proceeds of sale of the original church property, then valued at about $11,200. The United States got $7,900—its steamboat debt plus interest. Emma Smith received $1,800, and the fees and expenses came to $1,500 and that used up the entire proceeds of Joseph’s property. No other creditors received anything under this court decree. Neither did the many landowners who had expended their monies in a good faith attempt to purchase Nauvoo lands from the church.
Spencer McBride: President Oaks then quoted the conclusion of the article that he and Joseph Bentley published in the BYU Law Review.
President Dallin H. Oaks: “As a result, persons who had purchased from the successor trustees what they thought were Church properties, would now have those properties sold at a judicial sale, with one-sixth of the proceeds being paid to Emma . . . . This result must have been embarrassing to the Church and an unexpected windfall for Emma Smith, then Mrs. Lewis C. Bidamon.” That’s the end of the quote. And it also seemed to me personally, as I reflected on this outcome, that there were two claims on this property.
There was the legal claim that prevailed, under which Emma Smith received a marvelously large inheritance for that time, and there was an equitable claim: this property belonged to the church. And it was only through a legal technicality and the mistake of lawyers that it wound up in that federal court decree. And I think the status of relations between Brigham Young and Emma Smith, which are relatively negative, as is well known, would surely not have been helped by this outcome that left Emma as really the only person that had any financial resources as a result of the business operations of the church in Nauvoo.
Spencer McBride: President Oaks and his research partners continued to use their legal expertise and study to help scholars better understand the history of the church during the 1840s. His legal training and historical interest aligned at a time when he lived and worked in Illinois, giving him easier access to the vast troves of records preserved in that state. It was a confluence of interest, skills, and location. And this confluence was on full display when President Oaks traveled to a particular destination in that state—the courthouse in Carthage, the town where Joseph and Hyrum Smith had been killed and where their accused assassins had been tried.
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Spencer McBride: During the late 1960s, President Oaks turned his scholarly attention to the trial of the accused assassins of Joseph Smith. But directing his energy into that research came as a result of a student repeatedly broaching the subject with him.
President Dallin H. Oaks: During this time, I was a professor of law at the University of Chicago, and an LDS friend, Marvin S. Hill, was finishing his PhD. I was aware that the trial had been mentioned by historians, but they never mentioned who was tried, what the evidence was and what the outcome of the trial was, and the church’s role, if any, in the prosecution. I knew there were great questions in that area. I kept putting Hill off, but as he got close to receiving his PhD and he’d be moving out of the community, I thought, well, maybe I better look into this. So, I made a trip to Carthage.
I knew there was a lot of anti-Mormon feeling in Carthage, the place where the trial was held, the county seat of Hancock County. And so I didn’t tell any of the people that I went into the courthouse that I was LDS. I just gave him a business card as a professor of law at the University of Chicago. And I asked them about a trial that was held in 1845. And they said, we don’t know anything about that, but it’s somewhere in this room. And they took me into a large room with six or seven shelves that went up to the ceiling to where you had to have a ladder to get to them, and they just left me in there, and it took me several hours to find an index to these numbered files.
Spencer McBride: Imagine, if you will, the daunting task of being in this room with shelves stuffed to the brim with decades and decades of legal records. And President Oaks was looking for a very specific case. It would take hours of work, but it would pay off.
President Dallin H. Oaks: I finally found an index, and it was drawer number 20: “Trials of 1845.” And I got the box down that contained that record and went through and discovered a packet of paper about three inches thick, bound up with a paper wrapping sealed with flour water paste that was used in those days. And I realized from the name of the case on the label, “People versus Levi Williams,” that I had in my hand the original records of the trial of the murderers of Joseph Smith that had never been opened since it was sealed in 1845. Its contents were entirely unknown to anyone.
And I sat down at a table and I slit that paper covered band with my thumb and the document spilled out on the table before me and the first thing I saw was the signature of John Taylor, who was present at the martyrdom, of course, issuing a formal complaint against nine individuals. And as I started through the other papers, I found the jury verdict in the hand of the head of the jury; not guilty was the jury verdict. I had the subpoenas that were issued for the various witnesses. I had the names of the jurors that served and even the names of the entire group from which the twelve-man jury was chosen. I remember the hair stood up on the back of my neck.
Spencer McBride: Once President Oaks returned to Chicago, he called Marvin Hill and told him that they now had a book project.
Dallin H. Oaks: And it took ten years of research to produce Carthage Conspiracy, which was published by the University of Illinois Press and which is still in print.
Spencer McBride: Interestingly, President Oaks and Marvin Hill were conducting this research in the 1960s and 1970s, amid the civil rights movement in the United States. And they saw in some of the trials associated with that movement echoes of a legal practice that had also determined the verdict of the 1845 trial of the accused assassins of Joseph Smith in the trial at Carthage. It’s an action called “jury nullification.”
President Dallin H. Oaks: That intrigued me because Marvin Hill spotted a relationship to experiences in American law at that time. What seemed to happen—and what we confirmed by our research later—is that there was ample evidence to convict all nine of the defendants. They were all present. They helped plan and bring the thing about and later bragged about it—ample evidence to convict them. But they were all found not guilty. It was a clear case where the law was against the defendants, but the facts of the case were approved by the jury. In other words, the jury wouldn’t convict someone of an obvious crime when the result of that crime was what the jurors desired. That was known as “jury nullification.” And I was not enough of a historian to relate that immediately to the civil rights trials happening at that very time in the South, where people who were guilty of murdering American citizens, other crimes against Black Americans. And the white juries in the South at that time—hostile to the civil rights workers, who were under their control and whom they were guilty of murdering—they simply nullified the law by finding not guilty people who were clearly, on the facts and the law, guilty of the crime that was charged.
Rick, play the role of a historian for me, something that the late Marvin Hill did at the time, and tell me, is that a good relationship with what happened in the trial of the murderers of Joseph?
Richard E. Turley Jr.: When the United States was established as a country, it was an experiment on whether vote by a majority could bring about good things. And in many cases, it did, and in some cases, it did not. Today, people living in the twenty-first century United States assume that the high-sounding provisions of the Bill of Rights applied at the local level clear back at the origin of the country. But, in fact, it did not, as you mentioned earlier. Near v. Minnesota applied some portion of it then, and it was a landmark case in 1931. The failure to apply the Bill of Rights at the local level up until that point meant that there were often people who represented a majority population who could prey upon or at least do negative things towards those in a minority population with impunity, with no punishment whatsoever. And they did it in many ways. And one of those ways was that through jury nullification. Even though someone could be guilty of a crime, they would get a jury of their peers—as they were understood to be able to do in those days—but if those peers agreed that what they did wrong was something they wanted to happen, then there would be no recourse against something even as violent as murder.
And therefore, we had a difficult time establishing civil rights in the United States for minorities of all kinds—for racial minorities, ethnic minorities, religious minorities—until well into the twentieth century, when the Supreme Court began to apply the Fourteenth Amendment, and until that was followed by civil rights legislation and the civil rights movement, and it’s still, to a certain extent, a problem today.
Spencer McBride: In an earlier episode of this podcast series, we mentioned that there were unusual tactics used by the prosecution in Carthage in 1845 to select a jury that would favor the accused assassins of Joseph Smith. In our conversation, President Oaks dove deeper into the legal details of that occurrence. Based on his research with the trial records, the records he had been the first person since the trial to fully review, I asked President Oaks how such a partial jury was selected in the trial.
President Dallin H. Oaks: Well, that is a very interesting question, and in our research, we found something that really had never been written about in American legal history. On the first day of the trial, allegedly because of prejudice against the defendants, the defense attorneys challenged the whole panel of twenty-four potential jurors from which the twelve would be selected and said, in a motion, they should be dismissed and the county commissioners who had assembled that panel and the legal substitutes, if they were not able to function, should all be disqualified and two individuals called “elisors,” a term I’d never heard of, should be appointed to select a new jury panel from the bystanders at the trial. And selecting from the bystanders means the jury won’t be a cross-section of the county. It may include some Mormons; it may predominantly be non-Mormons and some anti-Mormons who had shown up for the trial. What I’ve just described was apparent in the papers that I discovered in the courthouse.
I had never heard the term “elisors” before, but Blackstone, who was the primary legal source dealt with in those days, said that two alternate persons could be chosen or appointed by the judge to choose a jury if there was tolerable ground of suspicion of prejudice. And the prosecutor in this case seeking to get conviction of these nine individuals opposed that motion and pointed out there was no evidence of prejudice in the panel that had already been assembled and that the appointment of the elisors instead of the regular legal authorities had never been done in any case in the United States of America. So, this was entirely a new procedure as far as anybody in Illinois knew. We didn’t discover any other case in our research, so I take it to be a pretty good argument.
But the judge, who was probably influenced by political considerations and a very real belief that there might be war in Hancock County if the defendants were convicted, he granted the motion and appointed two non-Mormon elisors to choose the jury panel. The result was a panel from which Mormons were effectively excluded, and that was the governing consideration in why those guilty men were acquitted.
Richard E. Turley Jr.: Here was a case in which there were clearly two murders committed, the people who committed the murders were known, there was plenty of evidence to convict them, but because of this attitude on the part of the community and even those who were in the courtroom at the time, who should have been looking for a more fair result, led to a jury choice which effectively determined the outcome of the trial.
Dallin H. Oaks: As you described that result, I remembered something that a principal defense attorney argued to the jury when all the evidence was in. He said to the jury, essentially, these men are not guilty because they expressed the community desire to be rid of this man. That’s jury nullification in its rankest description.
Spencer McBride: The prosecutor in the case had determined to hold two separate trials for the men accused of killing Joseph and Hyrum Smith. But when the trial of Joseph’s accused murderers ended in acquittal, the prosecutor decided not to hold a second trial and dismissed the charges against the same men for the murder of Hyrum.
In episode 5 we discussed church leaders’ reasons for keeping their distance from the trial. A sense that the trial would be unfair was one of those reasons. But so was a fear of violent backlash against the Saints from their avowed enemies in the area. President Oaks offered some insights on this.
President Dallin H. Oaks: For example, when word reached the church leaders in Nauvoo about how the jury had been selected, they advised the prosecution that they would have nothing more to do with the prosecution. They had previously declined to try to round up witnesses, and they had told church members to stay away from the trial lest they be involved in violence or produced some pretext for violence.
Spencer McBride: Church leaders did send a church member, a man by the name of George Watt, to take the minutes of the trial so that they would have a record of those proceedings, but that was the limit of their participation in the trial. At this point in our conversation, President Oaks made a historical connection about church leaders’ decision to keep their distance from the trial and their fear of violent backlash that I had not considered before.
President Dallin H. Oaks: The wisdom of that strategy is evident in the timetable that followed. The trial concluded in June 1845, and it was just about six months later that the temple was finished so that the Saints could receive their endowments before the exodus began in February 1846, about two months later.
Spencer McBride: So, if the church’s leadership had actively testified in the trial and protested the clearly biased selection of the jury, the violent backlash that they likely would have experienced may have prevented the completion of the Nauvoo temple and the administration of the endowment to church members prior to their move to the Great Salt Lake Valley.
The research that President Oaks and others conducted in the 1960s and 1970s was groundbreaking and paved a path forward for many others who would research the legal and financial history of Joseph Smith and others in Nauvoo, including the historians working on the Joseph Smith Papers. Today, that project is publishing a financial series and a legal series, presenting legal and financial documents with annotations that expand upon the discoveries of past generations.
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Spencer McBride: Though many of the men who incited and comprised the mob that killed Joseph and Hyrum Smith were known and openly bragged about their crimes, the earthly courts charged with administering justice in the case did not convict the guilty parties. Frustrated as the Saints were by the proceedings, in memorializing their fallen church leaders, they spoke and wrote with confidence that they would be cared for by God, that there would be justice in the eternities.
In the announcement of the martyrdom that now appears in the Doctrine and Covenants as section 135, the end of the third verse states of Joseph Smith, “He lived great, and he died great in the eyes of God and his people; and like most of the Lord’s anointed in ancient times, has sealed his mission and his works with his own blood; and so has his brother Hyrum.”
I spoke briefly with President Oaks and Rick Turley about this verse. Of course, not all who have been prophets have had to die tragic deaths. But Joseph and Hyrum did.
I asked my guests how they would help church members understand this statement in the Doctrine and Covenants. Why is it significant that Joseph and Hyrum Smith sealed their mission and works with their blood?
President Dallin H. Oaks: The first reason I would cite is that Joseph and Hyrum were in a unique position in the restoration of the gospel, different from any other prophets who have served since that time. Why the Lord found it necessary to allow them to seal their testimony with their blood, I do not have any explanation. But essential to that reason, whatever it was, was the fact that these two men were unique in their position in the restoration of the gospel in the latter days.
Richard E. Turley Jr.: The word martyrdom comes from a Greek term that means “to witness,” and by being willing to undergo the persecution that they experienced in their lives rather than flee it by denying what they knew to be true, they proved faithful to the witness that they had received through the Spirit. And the ultimate giving up of their lives was a way of putting that final stamp, that final seal on their testimonies, that what they had spent their lives sacrificing for was really what they said it was.
Spencer McBride: Our conversation then turned to the preserving and sharing of all of Joseph Smith’s surviving documents through the Joseph Smith Papers Project. That project adheres to the highest academic standards, and each volume is reviewed by a national advisory board comprised of some of the top scholars in documentary editing and American history, including the history of religion in the United States. I asked Rick Turley and President Oaks: why is it so important to the church that the Joseph Smith Papers publish all of these documents in such an academic and transparent way?
Richard E. Turley Jr.: As I was growing up and studying the prophet Joseph Smith, I very quickly realized that he was being cited for nearly any proposition that a church member wanted to cite in a talk or in a lesson. We came to recognize that probably the most difficult of our church presidents to tie down in terms of sources and original materials was Joseph Smith because he died before we had stenographers who were taking down his talks verbatim. He was persecuted from pillar to post, and as a result, had a very difficult time maintaining records, although given his circumstances, I think he did a very remarkable job. So devoting time and resources to establishing what the papers of Joseph Smith are and what can be relied upon by Church members and by scholars is a way of taking Joseph Smith out of the realm of mythology and putting him in the realm of history.
President Dallin H. Oaks: Putting Joseph Smith in the realm of history is an essentially vital task for the church that he restored. His critics have leveled unsubstantiated charges against him, which we can answer best by referring to the records—the scattered but voluminous records of those who knew him and observed his ministry.
So, it is essential to establishing his place as a prophet and his position as the founding president of the restored Church of Jesus Christ of Latter-day Saints that we assemble all that we can and publish it to the world, showing that we have nothing to hide and that we have a good basis for acclaiming him as a prophet of God—the founding prophet—of the restoration of the gospel of Jesus Christ.
Spencer McBride: My final question for President Oaks and for Rick Turley focused on their faith. How has Joseph Smith’s testimony of Jesus Christ influenced your own testimony?
Richard E. Turley Jr.: As one who has devoted over a half century studying the life of the prophet Joseph Smith, I have seen his testimony in his spoken words that have been recorded. I have seen it in his written words that have been recorded. And, as much as anything, I have seen it in his actions. And seeing his testimony reflected in his words and his writings and his actions has been for me a good example of what the Savior told us to do. He basically said that if we obey His commandments, we will understand the blessings that come therefrom. He has basically said that it’s not enough to be a hearer of the word, we have to be a doer also—and Joseph Smith was a doer.
President Dallin H. Oaks: May I just add that I don’t know anyone in the church, present or past, who has the knowledge of the primary sources like the diaries of church leaders that our friend Rick Turley has. He’s a precious resource. I rely on his words and the words of others who knew the prophet Joseph Smith and recorded his actions. But most of all, on the testimony of the Spirit of the Lord that Joseph was chosen by the Lord to restore the fulness of the gospel of Jesus Christ.
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Spencer McBride: As I interviewed the many scholars whose expertise has been featured in this podcast series, I reflected again and again on the various scholarly applications of the story of the martyrdom of Joseph and Hyrum Smith. The event illuminates the history of religious discrimination and mob violence in nineteenth-century America. It highlights the strategies employed by religious minorities in the United States to help their country realize the promise of universal religious freedom. It’s a story with major implications to the study of legal and financial history, of how communities mourn and memorialize, of how societies try—and sometimes fail—to live in peace despite differences, and of so much more.
It’s easy to simplify the history of the martyrdom into a one-dimensional story of violence driven by religious prejudice. It’s also easy to simplify on the other side of the spectrum—to discount religious prejudice and claim that the motives of the mob can all be understood in the legal, financial, and political concerns of the region. But the reality is far more complex. There were legal, financial, and political elements at play, but they were all colored and influenced by religious prejudice. Understanding how these factors converged is key to understanding the martyrdom.
And I think that for members of the Church of Jesus Christ of Latter-day Saints today who reflect on the significance of the martyrdom, the story, even in all of its complexity, is one of the faith and dedication of Joseph and Hyrum Smith. Joseph Smith taught the gospel of Jesus Christ and, in his prophetic role, tried to help the men and women who would listen to think beyond the traditional religious beliefs of the societies in which they were raised to discover through revelation and inspiration the fulness of the gospel. And when a mob killed Joseph and Hyrum at Carthage, the Saints mourned—but they also remembered. And they persisted in their beliefs and in their worship.
And so, today, the story of the martyrdom is not merely an account of a tragic murder. It’s a story that, when fully understood, can inspire greater faith in Jesus Christ.
This has been Road to Carthage: A Joseph Smith Papers Podcast. Thank you for listening.
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Spencer McBride: If you are interested in learning more about the history discussed in this episode or in exploring the papers of Joseph Smith, visit josephsmithpapers.org.