Testimony Given At Js'S 1826 Trial

[Nevo]

I can think of other options worth exploring. . .

Hi Joey,

Thanks for adding your thoughts. I would argue that your options 4 and 5 are 6 would still fall under my options 1 and 2, but I agree that the evidence admits a more nuanced approach than I let on in my post. Still, some of the stories regarding Joseph Smith's use of the seer stone do seem to force an either/or response. Dan Vogel mentions one in his essay "'The Prophet Puzzle' Revisited":

"Josiah Stowell, another believer in Smith's gift, testified at the [1826] court hearing that Smith said that he saw in his stone a treasure 'on a certain Root of a stump 5 feet from [the] surface of the earth, and with it would be found a tail feather.' After digging, Stowell said that they 'found a tail feather, but the money was gone, that he supposed that [the] money moved down.' The discovery of an object not normally found underground becomes either proof of Smith's true gift or evidence of his fraudulent activity, for the deluded do not accomplish such feats" (Vogel, "

'The Prophet Puzzle' Revisited

,"

Dialogue: A Journal of Mormon Thought

31, no. 3 [1998]: 130).

Vogel suggests that Joseph may have "planted the tail feather during a previous visit to the area or, more likely, during the process of digging." Otherwise, we are left to conclude that Joseph really could see underground. (I notice this problem was treated at some length in a FAIR Blog post a couple of years ago.)

Edited May 5, 2013 by Nevo

[Nevo]

Those scenarios make no sense.

What scenario do you favor, Glenn? If Joseph wasn't convicted, wasn't "designedly allowed to escape," and wasn't acquitted, what's left?

[Glenn101]

What scenario do you favor, Glenn? If Joseph wasn't convicted, wasn't "designedly allowed to escape," and wasn't acquitted, what's left?

Why do you say that he was not acquitted? The only person who has made statements about the proceeding and who claims to have been at the proceeding states that Joseph was discharged.

But I see that you have not dealt with any of the points I actually made.

Glenn

[cdowis]

Dan,

I have to agree with you that most likely JS had indeed dropped the "feather" into the trench.

As you surely know, it is well documented that JS had a sense of humor, playing practical jokes on his friends. He was a treasure digger. For example, his first reaction to seeing the gold plates was that this was a dream come true -- money!

You have still failed miserable to explain the eleven witnesses testimony and how JS produced the BOM, despite lots of blasts of wind and your best effort. You can only concoct a scenario based on your imagination and conflicting evidence, and ignoring first hand testimony.

OK, so you show that he did some very immature and silly things, but so what?

Edited May 5, 2013 by cdowis

[Nevo]

Why do you say that he was not acquitted? The only person who has made statements about the proceeding and who claims to have been at the proceeding states that Joseph was discharged.

I thought acquittal was ruled out by your repeated mention that there was no double jeopardy defense in the 1830 South Bainbridge trial.

But I see that you have not dealt with any of the points I actually made.

I have no expertise in early nineteenth-century jurisprudence so I am really not qualified to address arguments about what a particular justice of the peace in New York in 1826 would have done or would not have done in a given circumstance. In any event, I'm quite open to the possibility that the concluding sentence in the Pearsall document "and thereupon the court finds the defendant guilty" was an "afterthought" added later (as Madsen suggests), so there's no need to keep pressing your case on this point with me. I'm not the one contesting it.

[J Green]

Vogel suggests that Joseph may have "planted the tail feather during a previous visit to the area or, more likely, during the process of digging." Otherwise, we are left to conclude that Joseph really could see underground. (I notice this problem was treated at some length in a FAIR Blog post a couple of years ago.)

And this conclusion would come more naturally for Vogel, who sees Joseph specifically involved in the wider accounts of the Smith family's treasure seeking activities. And in this case, the same kind of accusation is made about Joseph's ability to find lost objects as well -- i.e., that he stole the objects first and then "found" them later. But this is essentially the same complaint about all seers at this time and place: whatever is "seen" has been planted by the seer himself. And I find it hard to see a motive for Joseph that involves deceit when he's not charging anyone for the service. Unless one is arguing that a reputation built on free service leads to a confidence scheme that involves the creation of a company with shares, as in Stowell's case. In other words, he's a tool in the family business. This is where the complaints about the lost objects in the Stowell affair become interesting. Did Joseph fail in finding the objects or did he succeed only after placing the objects in the "found" locations himself? (As he was supposed to have done with the feather.) Both complaints are made. But which is it? That should require an either/or choice as well, right? And do we make an either/or choice based off only this case or do we consider other lost object stories independent of the Stowell affair as well?

The one sense I got from Madsen's article (contra Dan's brief assessement of Madsen's thesis on fraud and standing) was that this is a mixed bag. There are a number of anomalies in this case no matter what you think happened. In any scenario you choose, the evidence doesn't line up all the way with what should have happened in that given scenario. Although for Madsen, a scenario that concluded in acquittal left the fewest anomalies to explain.

Cheers, Nevo.

[Tacenda]

I'm only now realizing why JS was being prosecuted for treasure digging. I've wondered all this time why since others were doing the same thing, now since reading what Nevo said in the post above, it is clear why some treasure digging is dishonest. It is when something is planted beforehand to look like a "find". Let's just say I'm late to the party.

[Nevo]

I'm only now realizing why JS was being prosecuted for treasure digging. I've wondered all this time why since others were doing the same thing, now since reading what Nevo said in the post above, it is clear why some treasure digging is dishonest. It is when something is planted beforehand to look like a "find". Let's just say I'm late to the party.

Hi Tacenda,

Just to be clear, I am not saying Joseph planted the tail feather. That is Vogel's supposition. Personally, I am reluctant to discount the possibility that Joseph really did have a gift and somehow could see things with his stone—there is ample testimony that he could. But I have to agree with Vogel that, if I take that position, then consistency would dictate that I also allow for the possibility of "guardian spirits, bleeding ghosts, enchanted treasures that slip through the earth, and the like." And that's a pretty tall order!

[Glenn101]

I thought acquittal was ruled out by your repeated mention that there was no double jeopardy defense in the 1830 South Bainbridge trial.

Acquittal would be ruled out if a double jeopardy defense had been raised based upon a previous conviction in 1826.

I have no expertise in early nineteenth-century jurisprudence so I am really not qualified to address arguments about what a particular justice of the peace in New York in 1826 would have done or would not have done in a given circumstance. In any event, I'm quite open to the possibility that the concluding sentence in the Pearsall document "and thereupon the court finds the defendant guilty" was an "afterthought" added later (as Madsen suggests), so there's no need to keep pressing your case on this point with me. I'm not the one contesting it.

I don't have expertise in legal jurisprudence in any age. I just read and research as much as I can on the pertinent points, using legal documents from the particular time and place in an attempt to come up with plausible or probable scenarios.

But now you have me confused as to what point you were trying to make. On the one hand, you were quoting Mark Ashurst-McGee about the court record as to it being genuine, and now you indicating that you pretty much agree with the conclusion that Truman Madsen came to about the provenance guilty verdict that the document allegedly had.

I have not been trying to establish that the record was not genuine. The point I was trying to make is that without the original document with which to comapre the various excerpts, there is no way to ascertain that the those excerpts are transmitted to us without corruption, or that there may have been things added or deleted.

Glenn

[Bernard Gui]

And this conclusion would come more naturally for Vogel, who sees Joseph specifically involved in the wider accounts of the Smith family's treasure seeking activities. And in this case, the same kind of accusation is made about Joseph's ability to find lost objects as well -- i.e., that he stole the objects first and then "found" them later.

Having done a bit of digging myself (not for treasure, of course), it is very difficult to disguise even a

small excavation. Living on the frontier, Stowell and others would have noticed ground disturbance.

Edited May 5, 2013 by Bernard Gui

[cdowis]

Having done a bit of digging myself (not for treasure, of course), it is very difficult to disguise even a

small excavation. Living on the frontier, Stowell and others would have noticed ground disturbance.

OK, and is it possible to plant the feather in the excavation process itself, if no one is carefully watching.

[J Green]

Having done a bit of digging myself (not for treasure, of course), it is very difficult to disguise even a

small excavation. Living on the frontier, Stowell and others would have noticed ground disturbance.

Agreed, especially if it is recent activity. We'd scan for just this kind of discoloration in Iraq and Afghanistan as an indicator of digging to emplace Improved Explosive Devices (IEDs). When we saw mismatching soil colors, we'd make like the magi and go home by another way just to avoid the royal welcome that awaited us. [Cue James Taylor song]

[Dan Vogel]

Right. One is a convicted felon. The other is a felon.

This wasn't a theft from the Huntington. It was from a public court file. There are reasons penalties are severe for the latter.

It certainly provides ammunition to question the entire thing. I'm surprised you can't see the possibility of malice.

You do know what's on these documents don't you? Nothing a forger would bother with. And I have already pointed out that a forger would simply plant the evidence and not blow his cover by admitting he took them from the basement and had them preserved. You are on the losing side of this issue because you want play polemics and deal in unreasonable doubt, which might work with some juries but not with me.

[Dan Vogel]

What are the reasons to trust them, especially after Walters had stolen them and kept possession of them for an extended period of time. Wheter he altered them or not his actions certainly casts a pall of doubt over them.

It could raise suspicions and cause closer examination of the documents, but as documents go these are quite boring. The two documents are lists of charges that include other cases that mesh with other bills of other justices that Walters had no access to, so that rules out a forger for the whole document. Any idea that Walters tampered with these documents would be easy to prove. Otherwise, one has to believe Walters was a better forger than Hofmann and wasted his talent on trivial matters. Anyone who has worked with these materials as I have will regard such speculation as nonsense. DeZeng's bill is badly damaged on the right side and the charges for the various services barely visible. Walters would have to forge the damaged section as well. My guess is that the Joseph Smith Papers crew regard these bills as authentic as well.

[ERayR]

It could raise suspicions and cause closer examination of the documents, but as documents go these are quite boring. The two documents are lists of charges that include other cases that mesh with other bills of other justices that Walters had no access to, so that rules out a forger for the whole document. Any idea that Walters tampered with these documents would be easy to prove. Otherwise, one has to believe Walters was a better forger than Hofmann and wasted his talent on trivial matters. Anyone who has worked with these materials as I have will regard such speculation as nonsense. DeZeng's bill is badly damaged on the right side and the charges for the various services barely visible. Walters would have to forge the damaged section as well. My guess is that the Joseph Smith Papers crew regard these bills as authentic as well.

I have no reason to doubt their authenticity but was asking why you trusted them. I can agree with your reasoning on authenticity. What I do not agree with are the conclusions you draw from them.

[Dan Vogel]

To be fair, Madsen makes this observation about standing -- that of all the witnesses only Stowell had invested something in terms of payment -- to point out that the witness who had the "most to lose" in the matter testified forcefully that Joseph really could use the seer stone and wasn't a fraud. He ties that observation to Purple's conclusion that faced with that kind of strong testimony from the witness who had the most invested, Neely had no choice but to acquit.

Cheers.

Purple's memory isn't correct. He doesn't even understand the legal theory of the case. The transcript of the trial makes it clear that Neely was interested in JS's violating the "pretending" to find lost objects part of the disorderly person's statute; there is nothing about money changing hands, as Madsen's theory would expect. The law assumed "pretending" was involved, and JS's attempt to argue that he was a real scryer amounted to a confesssion. That's why Neely put JS and three witnesses under recognizance and DeZeng notified two other justices for a Court of Special Sessions.

[Dan Vogel]

Dan,

I have to agree with you that most likely JS had indeed dropped the "feather" into the trench.

As you surely know, it is well documented that JS had a sense of humor, playing practical jokes on his friends. He was a treasure digger. For example, his first reaction to seeing the gold plates was that this was a dream come true -- money!

You have still failed miserable to explain the eleven witnesses testimony and how JS produced the BOM, despite lots of blasts of wind and your best effort. You can only concoct a scenario based on your imagination and conflicting evidence, and ignoring first hand testimony.

OK, so you show that he did some very immature and silly things, but so what?

JS allowed this joke to be used as testimony in a court of law? Of course, the effect was to make a believer out of Stowell, which aided JS in getting more money from his employer. This was the reason for the legal action against Smith by Stowell's sons. I suppose in letting people feel a set of fake plates through the cloth was a joke also? You must have been assigned to the topic of BOM witnesses since you always bring it up in the same words every time you respond to me. You think it's a strong point, but I have answered it many times and I'm not going to here. People can watch my videos on the witnesses and decide for themselves.

[Dan Vogel]

Having done a bit of digging myself (not for treasure, of course), it is very difficult to disguise even a

small excavation. Living on the frontier, Stowell and others would have noticed ground disturbance.

I don't believe JS previously dug a five foot hole and buried a tail feather. More likely he planted it as he was helping Stowell dig, probably at night.

[Dan Vogel]

I have no reason to doubt their authenticity but was asking why you trusted them. I can agree with your reasoning on authenticity. What I do not agree with are the conclusions you draw from them.

Glen knows them quite well, but I don't think my conclusions are unreasonable. Differences are possible due to the incomplete and vague nature of the documents. However, LDS resistence to JS's being found guilty is strange to me since it has no bearing on his truth claims. The law can't decide things like that.

[cdowis]

JS allowed this joke to be used as testimony in a court of law? Of course, the effect was to make a believer out of Stowell, which aided JS in getting more money from his employer.

Excuse me for not following this thread, but have you established that JS was receiving increasing amts of money for his work.

This was the reason for the legal action against Smith by Stowell's sons.

That was their assertion.

I suppose in letting people feel a set of fake plates through the cloth was a joke also?

The plates actually existed, as demonstrated by the eleven witnesses. No joke here, my friend, but reality.

You must have been assigned to the topic of BOM witnesses since you always bring it up in the same words every time you respond to me. You think it's a strong point, but I have answered it many times and I'm not going to here.

And you continue to assert that you have answered, so perhaps you can provide me a link to it since I have not seen it. No need to repeat yourself, just the link. I also will not repeat my questions since I have repeatedly asked them at least three times over the past year or so. I am very patient.

Edited May 6, 2013 by cdowis

[cdowis]

Glen knows them quite well, but I don't think my conclusions are unreasonable. Differences are possible due to the incomplete and vague nature of the documents. However, LDS resistence to JS's being found guilty is strange to me since it has no bearing on his truth claims. The law can't decide things like that.

JS admitted that he did some rather silly and foolish things. As you say, has nothing to do with the truth claims of the BOM and his claim to revelation. Just that the Lord called a rather interesting and colorful individual to restore the church and Gospel, but who am I to judge.

Edited May 6, 2013 by cdowis

[J Green]

Purple's memory isn't correct. He doesn't even understand the legal theory of the case.

Well, if Purple is wrong about an acquittal, then you don't have to work very hard to argue that he doesn't understand a legal argument more nuanced than, say, innocent or guilty, right?

Cheers

[Glenn101]

Glen knows them quite well, but I don't think my conclusions are unreasonable. Differences are possible due to the incomplete and vague nature of the documents. However, LDS resistence to JS's being found guilty is strange to me since it has no bearing on his truth claims. The law can't decide things like that.

Given the paucity and contradictory nature of the facts in evidence and the testimonies, a couple or three conclusions can be reached. I don't think that my conclusions are unreasonable either.

I think that we all can agree on at least one thing, that the charges brought against Joseph were pretty frivolous, whether declared guilty or discharged, and the testimonies do not show Joseph as a fraud charlatan. (Maybe Dan will not agree with that last part.)

I do agree that whatever the outcome, it has no bearing on Joseph's calling as a prophet. The whole thing, including the subsequent trials on the same charges brought in 1830 were borne from bigotry and intolerance.

My main talking points have been that I do not believe that we can confidently trust the different accounts as to being completely trustworthy. We would really need the original document in order to be able to make that call.

I do not agree with Dan's assertion that "Purple's memory isn't correct. He doesn't even understand the legal theory of the case." Purple's statement that "It is hardly necessary to say that, as the testimony of Deacon Stowell could not be impeached, the prisoner was discharged, and in a few weeks left the town." seems to indicate an understanding that the law did not make looking into peepstones etc. for treasure a crime, but the act of pretending to do so. In the testimonies from all of the accounts, Stowell affirmed that Joseph had the ability to see treasure with the stone. Purple at least claims to have been at the proceeding and to have taken notes. And his conclusion is consistent with the way the statutes in question read.

I am going to quote the revelant portion of the 1813 Statutes of New York on disorderly persons:

"All jugglers ; All who pretend to have skill in physiognomy, palmistry, or like crafty science, or pretend to tell fortunes, or to discover where lost goods may be found ;"

Now several of the witnesses used the word "pretend" in their testimonies. But the only two witnesses that actually admit to having went with Joseph on any treasure hunting expeditions were confident in his abilities. And whether or not any of us believe that Joseph had that ability. Josiah Stowell describes in the Fraser's account how Joseph had given an accurate description of his house and outbuildings while at Palmyra. That witness takes the pretend out of the equation, legally. Whether anyone reading those statements believes them is really irrelevant to what went on in that day and age.

The three magazine accounts do not differ greatly, but there are some significant differences. In the Fraser's Magazine Josiah Stowell is quoted as saying "that he positively knew that the prisoner could tell, and did possess the art of seeing those valuable treasures through the medium of said stone".

In the two accounts by Bishop Tuttle in 1882 and 1886, "did possess" part is changed to "did profess". Just one little letter, but a world of meaning. Also, the Tuttle accounts do not include the part about Joseph being able to describe Josiah Stowell's house and outbuildings while Joseph was in Palmyra.

That are another couple of reasons that we need the foundation document in order to draw any valid conclusions about what was actually said by each of the witnesses.

If there are any lawyers keeping up with this, maybe they can opine as to whether my analysis of the legal part of the situation is anywhere close to the mark, or way out in left field.

Glenn

[canard78]

Given the paucity and contradictory nature of the facts in evidence and the testimonies, a couple or three conclusions can be reached. I don't think that my conclusions are unreasonable either.

I think that we all can agree on at least one thing, that the charges brought against Joseph were pretty frivolous, whether declared guilty or discharged, and the testimonies do not show Joseph as a fraud charlatan. (Maybe Dan will not agree with that last part.)

I do agree that whatever the outcome, it has no bearing on Joseph's calling as a prophet. The whole thing, including the subsequent trials on the same charges brought in 1830 were borne from bigotry and intolerance.

My main talking points have been that I do not believe that we can confidently trust the different accounts as to being completely trustworthy. We would really need the original document in order to be able to make that call.

I do not agree with Dan's assertion that "Purple's memory isn't correct. He doesn't even understand the legal theory of the case." Purple's statement that "It is hardly necessary to say that, as the testimony of Deacon Stowell could not be impeached, the prisoner was discharged, and in a few weeks left the town." seems to indicate an understanding that the law did not make looking into peepstones etc. for treasure a crime, but the act of pretending to do so. In the testimonies from all of the accounts, Stowell affirmed that Joseph had the ability to see treasure with the stone. Purple at least claims to have been at the proceeding and to have taken notes. And his conclusion is consistent with the way the statutes in question read.

I am going to quote the revelant portion of the 1813 Statutes of New York on disorderly persons:

"All jugglers ; All who pretend to have skill in physiognomy, palmistry, or like crafty science, or pretend to tell fortunes, or to discover where lost goods may be found ;"

Now several of the witnesses used the word "pretend" in their testimonies. But the only two witnesses that actually admit to having went with Joseph on any treasure hunting expeditions were confident in his abilities. And whether or not any of us believe that Joseph had that ability. Josiah Stowell describes in the Fraser's account how Joseph had given an accurate description of his house and outbuildings while at Palmyra. That witness takes the pretend out of the equation, legally. Whether anyone reading those statements believes them is really irrelevant to what went on in that day and age.

The three magazine accounts do not differ greatly, but there are some significant differences. In the Fraser's Magazine Josiah Stowell is quoted as saying "that he positively knew that the prisoner could tell, and did possess the art of seeing those valuable treasures through the medium of said stone".

In the two accounts by Bishop Tuttle in 1882 and 1886, "did possess" part is changed to "did profess". Just one little letter, but a world of meaning. Also, the Tuttle accounts do not include the part about Joseph being able to describe Josiah Stowell's house and outbuildings while Joseph was in Palmyra.

That are another couple of reasons that we need the foundation document in order to draw any valid conclusions about what was actually said by each of the witnesses.

If there are any lawyers keeping up with this, maybe they can opine as to whether my analysis of the legal part of the situation is anywhere close to the mark, or way out in left field.

Glenn

One thing that always brings a (wry) smile is that the whole issue of the trial (and apparently the at the law) at the time was not that Joseph was doing glass-looking at all, but that he wasn't very good at it. The wording of the 1813 law is not legislating against someone glass-looking at all, but someone pretending they could when they couldn't.

There ends being two separate implications to this in the context of 21stC perspectives.

- Joseph was a glass-looker/claimed second sight and used it for treasure hunting. Whether he "pretended" or not, he certainly did do those things. This fact alone is troubling history for some Mormons.

- Joseph "pretended" to have second sight but either was sporadic or unable. This becomes a more serious issue as, if proven, paints him as a fraudster and gives him "previous" as the British police might say. Even if he were a proven "pretender" in 1826 treasure-seeking circles, in theory this does not provide conclusive proof that he was also a fraudulent prophet.

- The fact that his peers had no concern about the treasure hunting is a good reminder to not judge it through my 21stC lense.

[Robert F. Smith]

Having done a bit of digging myself (not for treasure, of course), it is very difficult to disguise even a

small excavation. Living on the frontier, Stowell and others would have noticed ground disturbance.

You assume too much.

The Piltdown hoax was engineered by salting the excavation with phony remains of Piltdown Man, and it successfully fooled some very intelligent men on scene, including Pierre Teilhard de Chardin.