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Affidavit from Daniel Avery, 28 December 1843

Source Note

, Affidavit, before JS as mayor, , Hancock Co., IL, 28 Dec. 1843; handwriting of ; signature of ; certified by ; nine pages; JS Office Papers, CHL. Includes dockets, redactions, and notations.
Two bifolia and one loose leaf measuring 9¾ × 7¾ inches (25 × 20 cm). The upper left corners of the rectos of the bifolia and leaf are embossed with an elongated octagon containing the words “D & JAMES | SPRINGFIELD”, the insignia of a Springfield, Massachusetts, paper mill firm established by brothers David and John Ames in 1828. The bifolia and leaf were numbered 1–3, apparently at the time of inscription. The final page is blank except for the docket and notation made the following day. Upon completion, the affidavit was trifolded for storage. At some point, the leaves were stapled together in the upper left corner of the rectos. In 2018 the document underwent conservation to reattach the leaves of the bifolia.
, who served as JS’s scribe from 1843 to 1844, docketed the affidavit the day after its inscription. A few graphite redactions and markings were apparently made in 1855, when the document was copied into JS’s history. Sometime in the late nineteenth or early twentieth century, an unidentified clerk in the Church Historian’s Office docketed the document a second time. Andrew Jenson, who began working in the Church Historian’s Office (now CHL) in 1891 and served as assistant church historian from 1897 to 1941, added his initials below Bullock’s docket. In 2012 the document was cataloged as part of the JS Office Papers at the CHL. The document’s early dockets and notation as well as its later inclusion in JS’s history and in the JS Office Papers by 2012 indicate continuous institutional custody.

Footnotes

  1. [1]

    Whiting, “Paper-Making in New England,” 309; Gravell et al., American Watermarks, 235.

    Whiting, William. “Paper-Making in New England.” In The New England States: Their Constitutional, Judicial, Educational, Commercial, Professional and Industrial History, edited by William T. Davis, vol. 1, pp. 303–333. Boston: D. H. Hurd, 1897.

    Gravell, Thomas L., George Miller, and Elizabeth Walsh. American Watermarks: 1690–1835. 2nd ed. New Castle, DE: Oak Knoll Press, 2002.

  2. [2]

    See the full bibliographic entry for JS Office Papers, ca. 1835–1845, in the CHL catalog.

  3. [3]

    Jessee, “Writing of Joseph Smith’s History,” 456.

    Jessee, Dean C. “The Writing of Joseph Smith’s History.” BYU Studies 11 (Summer 1971): 439–473.

  4. [4]

    JS History, vol. E-1, 1831–1833; Vogel, History of Joseph Smith, 1:c.

    Vogel, Dan, ed. History of Joseph Smith and The Church of Jesus Christ of Latter-day Saints: A Source and Text-Critical Edition. 8 vols. Salt Lake City: Smith-Pettit Foundation, 2015.

  5. [5]

    Jenson, Autobiography, 192, 389; Cannon, Journal, 9 Feb. 1891; Jenson, Journal, 9 Feb. 1891 and 19 Oct. 1897; Bitton and Arrington, Mormons and Their Historians, 47–52.

    Jenson, Andrew. Autobiography of Andrew Jenson: Assistant Historian of the Church of Jesus Christ of Latter-day Saints. . . . Salt Lake City: Deseret News Press, 1938.

    Cannon, George Q. Journals, 1855–1864, 1872–1901. CHL. CR 850 1.

    Jenson, Andrew. Journals, 1864–1941. Andrew Jenson, Autobiography and Journals, 1864–1941. CHL.

    Bitton, David, and Leonard J. Arrington. Mormons and Their Historians. Salt Lake City: University of Utah Press, 1988.

  6. [6]

    See the full bibliographic entry for JS Office Papers, ca. 1835–1845, in the CHL catalog.

Historical Introduction

On 28 December 1843, in , Illinois, swore an affidavit before JS as mayor recounting his kidnapping and imprisonment by a group of Illinoisans and Missourians and the legal proceedings he underwent in . Avery had been kidnapped by a mob on 2 December and carried to Missouri to face a manufactured charge of horse theft. After spending about three weeks in prison in Missouri awaiting trial, Avery obtained a writ of from the Clark County, Missouri, court and was discharged after a hearing on 25 December. He arrived in Nauvoo at “about dusk” the next day. Coming just one day after returned from his long imprisonment in , Missouri, Avery’s arrival in Nauvoo was heralded by JS and others in the city. In his journal, JS recorded that he “rejoiced exceedingly this day” because Rockwell and Avery were released and “Mo [Missouri] was again rid of the Brethn.”
Two days after his arrival in , went before JS as mayor and gave his statement for an affidavit. , clerk of the mayor’s court, wrote the affidavit as Avery presumably dictated it, and both Avery and Phelps signed the completed document. The next day, corrected the affidavit’s spelling and grammar. Bullock also made a copy of the affidavit and added a notation on the back of the document: “Copied for Governor.” This copy was presumably sent to governor as one of the “affidavits relative to the late Kidnapping” of Avery and his son, , included in a bundle of documents that Phelps sent to Ford on 30 December 1843.
The original affidavit was retained in , while the copy sent to is apparently not extant. The original affidavit, as corrected by , is featured here.

Footnotes

  1. [1]

    JS, Journal, 26 Dec. 1843.

  2. [2]

    JS, Journal, 25 and 26 Dec. 1843.

  3. [3]

    William W. Phelps, Nauvoo, IL, to Thomas Ford, Springfield, IL, 30 Dec. 1843, JS Office Papers, CHL.

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. *Affidavit from Daniel Avery, 28 December 1843 History, 1838–1856, volume E-1 [1 July 1843–30 April 1844] “History of Joseph Smith”

Page [8]

had no fees for him. I objected to having my trial put off 6 months: I did not fancy the dungeon of prison. The court concluded to let me to bail under bonds of $1000 but this I could not obtain: subsequently it was reduced to $500, but all in vain for I was unacquainted with the people. This was on Saturday and I was thus left to meditate on the mischief that may be made out of a little matter by meddlesome men: On Monday I sued out a writ of and after a fair hearing of the matter I received the following Order
State of Missouri) sct
County of Clark)
ordered by the Clark County Court, Decer. 25th, 1843, that Samuel Morgan, <​Musgrove​> of sheriff of said <​Clark​> County, discharge from imprisonment on an indictment found against him for the alleged crime of stealing a— mare of ’s [p. [8]]
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Source Note

Document Transcript

Page [8]

Document Information

Related Case Documents
Editorial Title
Affidavit from Daniel Avery, 28 December 1843
ID #
7690
Total Pages
10
Print Volume Location
JSP, D13:428–436
Handwriting on This Page
  • William W. Phelps

Footnotes

  1. [24]

    After the grand jury returned a bill of indictment against Avery, his case was continued to the June 1844 session of the Clark County Circuit Court. However, this apparently was not the result of any deception or maleficence on the part of the witnesses or Avery’s attorney. All the indictments returned that day by the grand jury were continued to the next session. (Docket Entry, 23 Dec. 1843, State of Missouri v. Daniel Avery [Clark Co. Cir. Ct. 1843], Clark Co., MO, Circuit Court Records, 1837–1886, vol. A, pp. 426–427, 431, microfilm 1,014,950, U.S. and Canada Record Collection, FHL.)

    U.S. and Canada Record Collection. FHL.

  2. [25]

    When Avery was initially remanded to jail on 4 December 1843, Justice of the Peace John Dedman set his bail at $1,000. The Clark County Circuit Court reduced this to $500 on 23 December, following Avery’s formal indictment. (John Dedman, Mittimus, [Waterloo, MO], 4 Dec. 1843, State of Missouri v. Daniel Avery [Clark Co. Cir. Ct. 1843], Clark County Circuit Clerk’s Office, Clark County Courthouse, Kahoka, MO; Docket Entry, 23 Dec. 1843, State of Missouri v. Daniel Avery [Clark Co. Cir. Ct. 1843], Clark Co., MO, Circuit Court Records, 1837–1886, vol. A, p. 426, microfilm 1,014,950, U.S. and Canada Record Collection, FHL.)

    Clark County Circuit Clerk’s Office, Clark County Courthouse. Kahoka, MO.

    U.S. and Canada Record Collection. FHL.

  3. [26]

    23 December 1843.

  4. [27]

    On 25 December 1843, Avery filed a second petition for a writ of habeas corpus with John W. Lewellen of the Clark County court. His petition alleged that he was “ready and anxious for a trial of his innocence . . . but the prosecutors being aware that they had no evidence against your petitioner had his trial delayed with the delusive hope of procuring testimony.” Avery sought an immediate hearing and review of the evidence in accordance with his constitutional right to a speedy trial. (Daniel Avery, Petition for Writ of Habeas Corpus, [Clark Co., MO], 25 Dec. 1843, State of Missouri v. Daniel Avery [Clark Co. Cir. Ct. 1843], Clark County Circuit Clerk’s Office, Clark County Courthouse, Kahoka, MO.)

    Clark County Circuit Clerk’s Office, Clark County Courthouse. Kahoka, MO.

  5. [28]

    An original copy of the discharge is located at the Clark County courthouse. (See Willis Card, Order, Waterloo, MO, 25 Dec. 1843, State of Missouri v. Daniel Avery [Clark Co. Cir. Ct. 1843], Clark County Circuit Clerk’s Office, Clark County Courthouse, Kahoka, MO.)

    Clark County Circuit Clerk’s Office, Clark County Courthouse. Kahoka, MO.

  6. [29]

    An abbreviation for the Latin scilicet, meaning “namely” or “to wit.” (“Scilicet,” in Bouvier, Law Dictionary, 2:379.)

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: Deacon and Peterson, 1854.

  7. [30]

    TEXT: Possibly “McCoy’s”.

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