A Footnote to the Extermination Order

Missouri Executive Order 44, commonly known as the Mormon Extermination Order, includes this text: “The Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace–their outrages are beyond all description.” The Order was rescinded in 1976, but prior to that time it was common for Mormons to wryly observe that it was legal for Missourians to kill Mormons on the street. Was that really true? Uh, no.

That word “exterminated” has led most Mormons to understand this as a “kill” order. I agree with Alex Baugh, a leading expert on Missouri Mormon history (and all around great guy) that it was not.

I’m interested in Mormon history. I attend the conferences, I read the journals. But I’m more a consumer of Mormon history than a producer of it. Yet when someone recently raised this question on Facebook, I realized that I actually have something to add to this question, based on the fact that I am an attorney and I can read Latin.

The word “exterminate” derives from the Latin verb exterminare. That verb means “to drive out or away, to expel or banish, to remove or put away.” To one who knows Latin this meaning is obvious, because the verb is formed from the prepositional phrase ex termine “from the boundary.”

The confusion exists because that word also came into English with the meaning “to destroy utterly,” largely based on usage in the Latin Vulgate (such as Psalm 36:9 [= English 35:8]) and the way that word came into French. And since the main way we encounter the word today has to do with the chemical killing of vermin, it is natural for us to assume that is the dominant meaning of the word and apply that meaning to this passage. But I think that is clearly wrong.

There is another reason why I think the kill order reading is wrong, and that has to do with the phenomenon of “legal doublets.” It is extremely common in legal contexts to pair synonyms in two different languages, a practice that develops when legal systems are evolving among peoples who speak different languages, which ensures the concept will be communicated to both language speakers. Many of these pair terms in English (Anglo-Saxon) and Latin (or law French). Examples would be aid and abet, all and sundry, assault and battery, armed and dangerous, due and payable, fit and proper, law and order, over and above, true and correct, and will and testament. (For a long list, consult the “Legal doublet” article at Wikipedia.)

The key language here is “must be exterminated or driven from the state.” People naturally think the structure needs to be A or B, but here it seems to be A or A, which doesn’t make sense; why would the Order express it that way? On that reading it is saying “driven from the state or driven from the state.” And I sympathize with that confusion. But the fact is, the document is indeed saying the same thing twice: first with a fancy-pants Latinate term and second in more pedestrian English. So in effect, yes, it says basically “be driven from the state or be driven from the state,” but the first part is Latin and the second is English, because this expression is analogous to a legal doublet.

So I am quite confident that if someone pre-1976 shot and killed a Mormon in cold blood on the streets of say, St. Louis, and then raised this Executive Order as a defense, he would have found his way to prison, or maybe more appropriately to a mental institution.

 

Comments

  1. Benjamin Park says:

    I appreciate your linguistic history here, Kevin, but I’ve disagreed with Alex’s interpretation, and I’m not convinced by yours, either. As a historian, I feel the best clue is context, and the context, at least for me, indicates the more violent option. “Exterminate” was frequently used in the racial and religious conflicts of early America, often (though not exclusively) with “erasure” being the implication. And while scholars previously emphasized “removal” (as in the case of the Trail of Tears), most now recognize the underlying assumption was genocide.

    And the language was used several times in the Missouri-Mormon conflict. Rigdon, in fact, was the first to invoke it, and he was specifically referring to a bloody war. Within all this context, then, I have a hard time interpreting the word any other way.

    The legality of this, of course, is a different question. I’m sure the executive order would not have held up if actually tried.

  2. Kevin Barney says:

    I forgot to mention Rigdon’s usage, which I agree seems to have the other “kill” meaning. But as for the Executive Order itself, I’ll agree to disagree. But thank you for this clear articulation of the other side on the question.

  3. Could the views be reconciled by accepting that the lawyerly minds who wrote the Extermination Order had Kevin’s intentions, at least superficially, while those not trained to the law heard and expressed the violent view? In my experience, in Mormon history or in current events, those with any real legal experience who write laws and other legal statements use the formal terms as Kevin understands them — it’s their craft, and even (maybe especially) when they have nefarious ends in view, this formal legal language gives them some kind of cover. (Recognizing genocide as the underlying assumption wouldn’t have waited for the 21st century to discover had it not been in deep cover through legal language.)

    A hot-head like Sidney Rigdon would use and hear a term like “exterminate” in the way Ben’s popular, untrained, and mobocratic folks would have, and would likely have scoffed at the idea that a pasty-faced lawyer in [whatever clothes they made fun of then] could read a different intent in the document. “Use yer common sense, man! Exterminate is exterminate!”

  4. Kevin Barney says:

    I will also observe that the order of the expression is strange if exterminated means killed; the more natural way to express would have been to reverse the order: “must be driven from the state or exterminated if necessary for the public peace.” It’s bizarre to put the more draconian remedy first. But I realize I am arguing from linguistics; others will need to weigh in on the history.

  5. Kevin Barney says:

    Ardis, I agree that even if the executive intent were as I have expressed it, it was reckless in the extreme to use the word “exterminated,” which could so easily be misconstrued. Or that word could have been a dog whistle, with plausible deniability.

  6. charlene says:

    Kevin, most of the legal doublets, including all of your examples, use the conjunction ‘and’ not ‘or.’ ‘Or’ is usually used when the terms actually are different, not a restatement of the same thing. Was that always the case in legalese?

  7. Ryan Mullen says:

    FWIW, Wikipedia lists a few legal doublets connected by ‘or’: way, shape or form; expressed or implied; let or hindrance, alter or change.

  8. Wondering says:

    While the disjunctive use of “or” is most common, it is also commonly “used to show that a word or phrase means the same as, or explains or corrects, another word or phrase.” Cambridge English Dictionary. I would suspect the ambiguity here to have been an intentional response to Rigdon’s July 4 speech: “… that mob that comes on us to disturb us; it shall be between us and them a war of extermination; for we will follow them till the last drop of their blood is spilled, or else they will have to exterminate us: for we will carry the seat of war to their own houses, and their own families, and one party or the other shall be utterly destroyed. …We will never be the aggressors.” While “if necessary” in the order can raise a question of oddly placing an alternative more drastic measure first, it would seem to refer to “exterminated or driven from the state” and not only to “driven from the state if necessary for the public peace.” If it were the latter, the order of the possible alternatives is not only strange, but nonsensical. But, I doubt anyone expected either Mormon or non-Mormon mobs to parse the sentence for ambiguity and inquire about intent prior to taking action!

  9. Kevin Barney says:

    Thanks for the overnight comments,

    I suggest that the wording is “analogous” to a legal doublet; I don’t think it is an actual example because it was a specific coinage for this one occasion and not traditionally used in other contexts. And yes, the “or” rather than “and” is a little unusual, but well enough attested.

    Boggs claimed in his 1840 report to the House that his intent was “to prevent the effusion of blood” [by driving the Mormons from the state], and I believe him.

  10. Your dashing my hopes of watching a 1970’s crime drama where there’s a homicide in Missouri, and just as the prosecution is wrapping the case up, the defense attorney does a hail-mary by informing the court about the Executive Order 44, and that the victim was a Mormon; so even if the defendant murdered the victim it would have been perfectly legal. Then the rest of the drama plays out by the defense coming up with evidence that the victim was inactive, and therefore should not be counted as a Mormon, while the defense tries to dig up evidence that they were indeed a believing Mormon.
    I still hold out hopes for one.

  11. I have heard the argument before, and I agree that this sounds like a legal couplet (which I always try to remove from contracts along with “know all men by these presents”, but that’s a different story. I also agree that Boggs was probably using that language to aid the mobs and give them legal cover for however they might carry that out while maintaining plausible deniability for his own actions. In other words, he relied on the lay understanding of exterminate to communicate with the general public while attempting to preserve a different technical meaning for a judge or a different public down the road.

  12. nobody, really says:

    I’m a direct descendant of one of the victims of Haun’s Mill. I also lived in Missouri for quite a while.

    If someone tells you what they are, believe them. “Driven from the state” didn’t mean “rent a U-Haul, load up their stuff, get them a suitable gift card for gas and food, and set the GPS for a state that begins with ‘I’ or ‘U'”. This was “fire your guns at them, threaten them with violence, rape the women, burn their crops, kill their cattle, and deprive them of everything they need to survive on the rural frontier edge of the country”. They didn’t care who had recently given birth, what the weather forecast was, if hotels along the way had vacancies, or if there was enough food for the journey.

  13. I’ve heard this argument before but don’t understand the point of it. We know that violence came both before and after this order. Maybe the state’s lawyers sought to invoke a legal doublet to create plausible deniability around the word “exterminate,” but in any event, it’s hard to imagine that Missouri officials intended anything other than a forcible removal at the point of a gun.

    Also: I could be mistaken, but don’t legal doublets put the Germanic word before the Latin one? “exterminated or driven” goes the other way around, working against the legal doublet argument.

    Also: In American legal language, aren’t legal doublets just inherited cliches rather than something actively developed among American legal practitioners? That would also work against the legal doublet argument.

  14. Kevin, Are you aware of any other similarly worded “extermination” order given at the same time or earlier?

  15. It really doesn’t matter what Boggs intended. It only matters how the mobs enforcing the order understood it. And I doubt very much that your average Missouri vigilante had enough background in Latin and legalese to parse out that “exterminate” might also mean to drive out, rather than the more obvious meaning. Put another way, Boggs was at best reckless in his wording, given the circumstances.

  16. Kevin Barney says:

    Gary, no I haven’t seen another example.

    To clarify, as I said upthread, the language of the Order was not historical but composed for the occasion, so it was *analogous* to a legal doublet, with a Latin expression that means drive them from the state immediately followed by the English words drive them from the state. I did not claim it was a previously attested legal doublet.

    The order was to drive the Mormons from the state. But what if the Mormons say no? Then the troops will use force to enforce the order. All I’m saying is this was not an order authorizing killing Mormons on sight. But of the Mormons resist, force will follow.

    Alex doesn’t believe Haun’s Mill was precipitated by the order. So if we take away those 17 deaths, how many Mormons died directly from troop actions? I think it was something like five. If the Missourians had carte blanche to just shoot any Mormon on sight, wouldn’t that number be a lo5 bigger?

  17. jader3rd,

    My husband swears that there was in fact a court case as you describe and the defendant got off on that technicality. He recounts the exciting court events at least once a decade. I’m sure he heard it in his youth and believed it then and believes it now. I believe it, like most of his “you wont believe this” stories are turning out to be, is apocryphal.

    But he keeps telling them.

  18. A quick Google Books search of the use “exterminate” in books from 1800 to 1845 tends to support Benjamin’s position contra Kevin. In nearly every instance in which the word is used to describe human conflict (rather than, say, extermination of disease), it is with reference to violent elimination of people (e.g., the Catholics against the Waldenses, Catholics against heretics, Catholics against Lutherans, Orangemen against Irish Catholics, Gran Colombia and Venezuela, et al.). Pointing to the fact that more Mormons weren’t simply murdered is a strange point of “devil’s advocacy” in the context of the indisputably violent expulsion of a people from their homes and possessions.

  19. Kevin Barney says:

    On its face the order authorized expulsion, and as I said in my last comment if the people don’t want to go willingly that expulsion will be violent. So a violent expulsion is not contra my position. The common Sunday School assumption is that the order authorized killing Mormons on sight. And in my view that Sunday School answer is wrong.

  20. nobody, really says:

    The rescission order is at:

    Click to access 19760625_RescisOrder.pdf

    “WHEREAS, on October 27, 1838, the Governor of the State of Missouri, Lilburn W. Boggs, issued an order calling for the extermination or expulsion of Mormons from the State of Missouri; and”

    I’d probably agree if the official rescission had read “extermination and expulsion”. But, it looks like expulsion is listed as an alternative to extermination. It’s borne out by the second paragraph:

    “WHEREAS, Governor Boggs’ order clearly contravened the rights to life, liberty, property and religious freedom as guaranteed by the Constitution of the United States, as well as the Constitution of the State of Missouri; and”

    That would indicate that the original order denied a right to life for Mormons, along with other rights.

  21. Kevin Barney says:

    Right, because whoever on the Governor”s staff drafted the repeal was reading the original order the conventional way.

  22. While the popular understanding of “exterminate” is to kill, and Google Books or any other reference might well indicate that “exterminate” was synonymous with “to kill” in a popular sense …

    … still, those appeals to popular usage are not entirely persuasive if the Extermination Order was written in a legal frame of mind. I think y’all aren’t necessarily aware that words used in a legal context do not necessarily mean what they do in a popular context. The concept of “term of art” is a real thing, and very well may have been in play here in some way.

    Whatever the linguistics or the history, I’m glad nobody seems to have had the “license to kill” interpretation in mind when I lived in Jackson County for a couple of high school years.

  23. xplanefan says:

    Because politicians ‘never’ mix meanings…. Common dictionary definitions of the time corroborate the expulsion definition as opposed to eradication, though the latter had already arrived as well by then. No doubt it was misunderstood on both sides. The Missourians in close proximity to the action were certainly smelling the blood on their snouts. The ones with the guns were ready kill. Any attempt to sit down to fill their minds w/ the intended Latin would have gone in one ear and out the other. I doubt anyone doubted that.

  24. Left Field says:

    I am not a lawyer, but even aside from the intended meaning(s) of exterminate, there is no way the order was still in effect for anybody in 1976. The rescission was a goodwill gesture with no actual effect, even in theory.

    The order was issued in Boggs’ capacity as commander-in-chief of the Missouri militia, and was directed to Gen. John B. Clark. Even at the time on it’s face, it was not a general order or authorization for anyone and their brother to exterminate (whatever that meant) Mormons. It applied to General Clark and anyone acting under his orders at the time. Once that circumstance concluded, there was nothing in the order that would apply anyone else, let alone someone in 1976. Of course, that is not to say that other people at the time might not have taken things into their own hands, but the actual legal text of the order was very specifically directed towards officers of the militia.

  25. And anyone who refused to be exterminated, or driven from the state would have been killed by their would be exterminators if they came pounding on the door. Not issued a ticket or court summons for violating the order.

    It’s a distinction with little difference.

  26. Maybe it would have made more sense if they’d used the Mormons’ favorite word: “exterminated, even driven from the state.”

  27. Kevin Barney says:

    Joni wins the thread!

  28. James Layton says:

    Interesting semantic discussion, but it has no relation to the law. What the church history site more accurately calls “ Lilburn W. Boggs, Executive Order to John B. Clark, Oct. 27, 1838” was an instruction by a governor to a particular, named officer to perform a particular task at a particular time. It necessarily expired as Boggs left the office of governor and John B. Clark left office—and as the circumstances changed. It could no more be used As a legal defense to killing a “Mormon” years later than the orders by President Lincoln during the Civil War could be used as a defense in the killing of southerners after the war. Governor Bond’s “rescission” Order was an interesting piece of political theater, but legally, there was nothing to rescind.

  29. Well it was a martial order: the carrying out of which, in general, is almost invariably prone to getting messy – even in our own age

  30. Kevin,
    There are a few history journals and articles on the web that pose this same theory, The Ithaca Journal, for one, but I found others going back to 2016. Since you didn’t cite any references, am I to assume this post was 100% original research, and that you came to the same conclusion, despite the long-entrenched Mormon perspective?

    With respect and hopefully scholarly openness (to a blogger I adore and have been commenting with for many years), I disagree with your perspective. I cannot imagine that a word with dual connotations and denotations, even if posed in a legal doublet, would be interpreted by 1830’s -1840’s frontiersmen with such nuance. And, in a time and place without much semblance of law and order, where people guarded their homesteads with rifles, when being evicted or driven out of a subsistence farm was depriving a family of a year of food and seed for the coming year, when even stealing horses was a capitol offense; ordering families off their homesteads/settlements, meant engaging in mortal force. Seriously, the same frontiers people that became bushwhackers in the civil war were supposed to interpret this violent (if not technically lethal) edict with legal nuance? I doubt it. It was truly a match to kerosine, and intended as nothing but. And, what are we to think of the many refugee’s stories and diaries (primary sources) that feared for their lives interpreting it as a death decree? Who then saw and experienced murder, bloodshed and violence? Isn’t it strange that the cumulative record that stood for nearly 200 years (from both sides) is suddenly turned on its head by in-depth technical legal jargon that literally no one from the era cited? Sorry, I’m just not buying a retrospective version of history. Perhaps Boggs and his administration used a clever turn of phrase to skirt the law while giving a clear dog whistle. I could consider that. But surely Boggs saw and intended militant consequences.

    And, have you checked the Missouri case law that cited the extermination order in the 70’s? Extremely illuminating. Your assumption is incorrect.

  31. Wondering says:

    The editors of the the JSPapers noted with respect to Rigdon’s July 1838 speech (printed ca. August 1838): “According to Webster’s 1828 dictionary, to ‘exterminate’ literally meant ‘to drive from within the limits or borders.’ The word, however, could also mean ‘to destroy utterly,’ as Rigdon indicates here. While the literal meaning was becoming obsolete by the 1830s, the second meaning was increasingly pervasive. (‘Exterminate,’ in American Dictionary; Kiernan, Blood and Soil, 15.)” I wonder if JS had any editorial hand in approving publication of the speech.
    While Boggs might have tried to preserve a legal argument about his language, it seems more likely in my view of such politicians, let alone 19th century frontier politicians, that he wasn’t being careful about the ambiguous language in his October 1838 order, but was responding in kind to hothead Mormon first presidency member Rigdon’s language and challenge.

  32. I’m with Ben Park. Sorry Kevin. The victims of it and the perpetrators alike interpreted “exterminate” as a license to kill, which is not an anachronistic application by audiences today but fit in with how “exterminate” was understood and used in other primarily racial contexts at the time and even long before.

  33. Kevin Barney says:

    No, I was not aware that several history journals had previously made the same argument I make here. Interesting. As I said in reply to Ardis, I can see it as a dog whistle with plausible deniability.

  34. Under modern international law, “extermination” is a crime against humanity: “‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” Another crime against humanity is “deportation or forcible transfer of population” (i.e., forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law). Boggs’s order represented crimes against humanity, full stop. Whether it required, licensed, or permitted *additional* crimes against humanity (e.g., murder, torture, sexual violence, etc.) doesn’t much matter.

  35. Kevin,
    I stand corrected by Wondering’s post and your response.

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