AN "ATTEMPTED VINDICATION" OF LAW.
It would appear that as soon as the news of the expulsion of the
saints reached the ears of the State officers, they were anxious to
reinstate them in their possessions. R. W. Wells, the attorney-general
of Missouri, wrote the lawyers employed by The Church to the effect
that if the "Mormons" desired to be returned to their homes in Jackson
County, an adequate force of the State militia would be sent forthwith
to accomplish this object, the militia have been ordered to hold
themselves in readiness for that purpose. He also promised that if the
"Mormons" would organize themselves into a company of militia, they
should be supplied with arms by the State. He also suggested that,
"as only a certain quantity of public arms can be distributed in each
county, those who first apply will be most likely to receive them."
This letter was written after a conversation between the governor and
the attorney-general; and by that conversation, the attorney-general
believed that he was warranted in making these suggestions to the
"Mormons," and one would be justified in regarding the foregoing as the
sentiments of the governor, as well as the attorney-general.
John F. Ryland, the circuit judge for the district of which Jackson
County was a part, wrote to Amos Reese, circuit attorney for the same
district, and also counsel for The Church, saying that he had been
requested by the governor to inform him "about the outrageous acts of
unparalleled violence that had lately happened in Jackson County;" and
had been requested by him to examine into these outrages, and to "take
steps to punish the guilty and screen the innocent." He, however, (that
is, Judge Ryland) could not proceed without some person was willing to
give the proper information before him. He asked the circuit attorney
to find out from the "Mormons" if they were willing to take legal
steps against the citizens of Jackson County; and if they desired to
be reinstated in their possessions. If so, he was willing to adopt
measures looking toward the accomplishment of this object, saying that
the military force would repair to Jackson County, and execute any
order he might make respecting the subject. "It is a disgrace to the
State," said he, "for such acts to happen within its limits, and the
disgrace will attach to our official characters, if we neglect to take
proper means to ensure the punishment due such offenders."
The order for an immediate court of inquiry had been prepared by the
governor, but he waited to hear from the saints, as to whether or not
they desired to be reinstated in their homes. The leading elders of
The Church, learning through their attorneys of the steps taken to
hold an immediate court of inquiry, at once wrote the governor, asking
him not to hold an immediate court of inquiry, as at that time many of
those persons whom they would want as witnesses were scattered through
several of the surrounding counties, and could not be notified in
time to be in attendance. Besides this they urged that many of their
principal witnesses would be women and children, and so long as the
rage of the mob continued unabated, it would be unsafe to take these
witnesses to Independence. "An immediate court of inquiry," wrote A.
S. Gilbert, "called while our people are thus situated, would give
our enemies a decided advantage in point of testimony." He asked his
excellency therefore, in behalf of The Church, to postpone the court of
inquiry until the saints were restored to their homes, and had an equal
chance with their enemies in producing testimony before the court.
Amos Reese, the circuit attorney, and one of the counsel for The
Church, concurred in these very reasonable requests; and said further:
"I think that at the next regular term of the court, an examination of
the criminal matter cannot be gone into without a guard for the court
and witnesses."
The communication which made these suggestions was followed up on the
6th of December by a petition to the governor, which set forth the
outrages committed against the saints by the Jackson County mob, as
already related in these pages; and asked him to restore them to their
possessions in that county; and protect them when restored by the
militia of the State, if legal, or by a detachment of the United States
troops. The petition suggested that doubtless the latter arrangement
could be effected by the governor conferring with the President of
the United States on the subject. They also asked that their men be
organized into companies of "Jackson Guards," and furnished with arms
by the State, that they might assist in maintaining their rights. "And
then," said they, "when arrangements are made to protect us in our
persons and property (which cannot be done without an armed force,
nor would it be prudent to risk our lives there without guards till
we receive strength from our friends to protect ourselves), we wish a
court of inquiry instituted, to investigate the whole matter of the mob
against the 'Mormons.'"
To this petition the governor replied on the 4th of February, 1834;
and said the request to be restored to their homes and lands needed
no evidence to support the right to have it granted. In relation
to the brethren organizing into military companies, the governor
said: "Should your men organize according to law--which they have a
right to do, indeed it is their duty to do so, unless exempted by
religious scruples--and apply for public arms, the executive could not
distinguish between their right to have them, and the right of every
other description of people similarly situated."
All these answers of the governor to the petition of the exiled saints,
so far, were good, and manifested a spirit to administer even-handed
justice. But when he comes to consider their request to be _protected_
in their possessions, as well as _reinstated_ in them, his reply was
not so favorable. "As to the request," said he, "for keeping up a
military force to protect your people, and prevent the commission of
crimes and injuries, were I to comply it would transcend the power with
which the executive of this State is clothed." Still, the laws of the
State empower the "commander-in-chief, in case of actual or threatened
invasion, insurrection, or war, or public danger, or _other emergency,_
to call forth into actual service such portion of the militia as he may
deem expedient."
In my judgment, it does seem that under the powers here conferred
upon the executive by this provision of the fundamental law of the
State--the constitution--the governor could have granted the request of
the saints to be protected in their homes, until peace was restored.
Surely the clause, _"or other emergency,"_ in the section of the law
just quoted, was broad enough to justify him in protecting, by the
State militia, twelve hundred citizens of the United States in their
homes until mob violence had subsided--until respect for the civil
law had been restored, and these citizens allowed to dwell in safety
upon the lands they had purchased from the general government. Under
this provision he could have "curbed those cruel devils of their
will," without "doing even a little wrong, in order to do a great
right"--without "wresting the law to his authority." But he chose to
interpret the law otherwise--as follows:
The words, "or other emergency," in our militia law, seem quite broad;
but the emergency to come within the object of that provision, shall
be of a public nature. Your case is certainly a very emergent one, and
the consequences as important to _your society_ as if the war had been
waged against the whole State, yet the _public_ has no other interest
in it than that the laws be faithfully executed.
The sequel will show how _faithfully_ the laws were executed, and how
the "public" stood by, indifferent spectators, while an unoffending
people were robbed of their possessions, and the laws of the State
set at defiance by insolent mobs. The governor closed his answer to
the petition of the exiles by saying that as then advised it would be
necessary to have a military guard for the court and State witnesses,
while sitting in Jackson County; and he sent an order to the captain
of the Liberty Blues to comply with the requisition of the circuit
attorney, in protecting the court and executing its orders during the
progress of the trials arising out of the Jackson County difficulties;
and said the "Mormons" could if they felt so disposed, return under
the protection of this guard to their homes, and be protected in them
during the progress of the trials.
It required no great wisdom, however, to foresee that for the saints to
return to their homes, and then be left there without protection--left
to the mercy of inhuman wretches, in whose veins ran none of the milk
of human kindness--would not be far removed from suicide, as the mob
greatly outnumbered the saints. To return under these circumstances
would only be laying the foundation for a greater tragedy than the one
already enacted; and the brethren wisely concluded not to attempt to
regain possession of their homes, until some measure was adopted to
protect them when there--until "God or the President ruled out the mob."
At the February term of the circuit court, which convened at
Independence, about twelve of the leading elders were subpoenaed as
witnesses on the part of the State, against certain citizens of Jackson
County for their acts of mob violence against the "Mormons." On the
twenty-third of the month these witnesses crossed the Missouri into
Jackson County, under the protection of the Liberty Blues, Captain
Atchison commanding. The company numbered about fifty, and were all
well armed with United States muskets, bayonets fixed--presenting
an outward appearance "fair and warlike." The company and witnesses
commenced crossing the river about noon, but it was nearly night before
the baggage wagon was taken across. While waiting for the arrival
of the wagon, it was decided to camp in the woods, and not go to
Independence until the next morning. Half the company and a number of
the witnesses went about half a mile towards Independence and built
fires for the night. While engaged in these duties the quartermaster
and others, who had gone ahead to prepare quarters in town for the
company, sent an express back, which was continued by Captain Atchison
to Colonel Allen, for the two hundred drafted militia under his
command: and also sent to Liberty for more ammunition. The night was
passed around the camp fires, as the party was without tents, and the
weather cold enough to snow a little.
Next morning the witnesses were marched to Independence under a strong
guard and quartered in the block-house--formerly the Flourney Hotel.
The attorney-general of the State, Mr. Wells, had been sent down by the
governor to assist the circuit attorney, Mr. Reese, "to investigate as
far as possible, the Jackson outrage." These gentlemen waited upon the
witnesses in their quarters, and gave them to understand that all hope
of criminal procedure against the mob was at an end. Only a few minutes
afterward, Captain Atchison informed the witnesses that he had received
an order from Judge Ryland that the services of his company were no
longer needed in Jackson County. So the witnesses for the State were
marched out of town to the tune of Yankee Doodle--quick time.
Thus ended the sickly attempt of the State authorities to "execute the
law"--in which execution the 'public,' according to the governor, was
interested, but no further interested in this outrage. But, "so far
as a faithful execution of the laws is concerned," he presumed, "the
whole community felt a deep interest; for that which is the case of the
'Mormons' today, may be the case of the Catholics tomorrow; and after
them, any other sect that may become obnoxious to a majority of the
people of any section of the State." [A] After this effort by the State
authorities to execute the law, doubtless all other sects or parties
who were likely to come under the ban of popular sentiment felt secure
in their liberties--satisfied with the valor of the officers of the
State who had trembled before the bold front of a mob--a mob which had
boasted that if the "Mormons" were reinstated in their homes by the
authority of the governor, not three months should elapse before they
would drive them again! And even while the circuit court was convened
at Independence, and a company of militia was in attendance to execute
its mandates, and the attorney-general of the State present to assist
the circuit attorney prosecute those who had violated the law--yet,
in the presence of all this authority, the old citizens of Jackson
gathered, and assumed such a boisterous and mobocratic appearance that
their bold front overawed the officers of the court; the attorneys of
the State telling the State witnesses--who were also sufferers from the
previous violence of the mob--that all hopes of criminal prosecutions
against the mob were at an end; while Judge Ryland issued an order for
the militia to withdraw, just when they were needed to protect his
court in vindicating the law!
Thus ended the only effort that was ever made by the officers of
Missouri to bring to justice these violators of the law. One class of
citizens had conspired against the liberties of another class, and
being the stronger had, without the authority of law, or shadow of
justification, driven twelve hundred of them from their possessions,
and there was not virtue enough in the executive of the State and
his associates to punish the offenders. The determination of the mob
to resist the law was stronger than the determination of the State
officers to execute it and make it honorable. And yet the constitution
of the State made it the imperative duty of the executive to "take
care that the laws are faithfully executed." And the laws of the State
empowered the commander-in-chief of the militia (the governor) "in case
of * * * insurrection, or war, or public danger, or other emergency, to
call forth into actual service such portion of the militia as he might
deem expedient." With this power placed in his hands by the laws of the
State, Governor Dunklin permitted mobs to overawe the court of inquiry
he himself had ordered, and allowed them to continue unchecked in their
unhallowed deeds of devastation and violence. And while the mobocrats
triumphed over the law, the governor's letters to the leading elders of
The Church contained many pretty patriotic sentiments, but he lacked
the courage to execute the law.
[Footnote A: Governor Dunklin's communication, Millennial Star, Vol.
14, p. 702.]