What follows is a summary of some of my research notes. I have been reading Puritan legal history of late, looking for ideas and ways of thinking about Mormon legal history. The literature on Mormon legal history is tiny; you can basically get it all on a single book shelf and still have room left over for Cobin on Contracts. The literature on Puritan legal history, on the other hand, is enormous.
Of course, in some sense it is passe to even speak of “Puritanism” any more. Back in the 1930s, Perry Miller published a fabulous book called “The New England Mind,” but these days no one seems to believe in Puritan thought any more, just lots of loosely connected Puritan thoughts. Nevertheless, there are some key features.
The earliest Puritan settlers wanted to create a commonwealth in which the law of god would reign supreme. Functionally, what this meant is that they didn’t actually create much in the way of substantive law. Interestingly, however, this didn’t mean that they created theocratic institutions. Indeed, most Puritans were pretty fanatical about separating the roles of minister and magistrate, and it was clearly the magistrates that were to be in control of the law. (Which is not to deny that ministers had a great deal of influence.) Rather, Puritan legal institutions were adapted from the charter of the Massachusetts Bay Corporation, which was essentially the articles of incorporation for a business enterprise. In other words, they used non-theocratic institutions for theocratic ends by giving those committed to a theocratic ideology control. Rather than promulgating religious legal codes, the earlies Puritans simply gave godly magistrates the authority to govern as they saw fit in light of God’s word contained in the Bible.
Unlike the Puritans, the Mormons had some substantive criminal law from the get go. As near as I have been able to find out the legal genealogy goes something like this: the Nauvoo City Council passed criminal laws. Modified versions of these laws were then re-promulgated by the High Council in Winter Quarters. Upon arrival in the Great Basin, the High Council of Great Salt Lake City re-promulgated modified versions of the Winter Quarters’ criminal laws. Finally, the State of Deseret passed a criminal code that was then adopted by the Territorial legislature when Congress finally got around to creating Utah Territory. Interestingly, these laws seemed to lack a great deal of explicit religious content. Unlike the Puritans, for example, Mormon criminal law does not seem to have been self-consciously modeled on biblical law. On the other hand, when it came to private law, the Mormons didn’t legislate. Indeed, private litigation was funnelled into ecclesiastical courts where the substantive rules applied (to the extent that there were substantive rules) had more explicitly scriptural models.
Unlike the Puritans, the Mormons had a mix of theocratic and non-theocratic institutions. The Constitution of the State of Deseret was more or less copied from Illinois. Even the territorial probate courts, which some historians have tried to argue were a unique Mormon innovation (probate courts in Utah had very broad jurisdictions, including criminal jurisdiction) were copied from other territories. The ploy of expanding probate jurisdiction as a way of placing more adjudication under local control (rather than under federal appointees) was used by lots of territorial legislatures. On the other hand, the Mormons did have powerful theocratic institutions that performed some legal functions. The most prominent of these were the various high councils. Both the high council in Winter Quarters and the high council in Salt Lake exercised complete criminal jurisdiction for a time. Through out the territorial period and before, high councils had virtually unlimited civil jurisdiction. Furthermore, Mormon activity within the context of non-theocratic institutions like the territorial legislature was mediated through theocratic institutions like the Council of Fifty or the (second) School of the Prophets that in effect acted as political caucuses and coordinating institutions under the control of the Church hierarchy.
Hence, the Mormon theocracy was both more and less theocratic than the Puritan theocracy. Both theocracies adapted non-theocratic institutions to religious ends by placing them in a theocratic political culture. In some ways, the substantive law of the (early) Puritan theocracy was much more explicitly religious than the substantive law of the early Mormon theocracy. On the other hand, unlike the Puritans, the Mormons did develop some powerful theocratic institutions. (Although even here it ought to be noted that New England ministers frequently mediated civil disputes, which were sometimes — often? — resolved in ecclesiastical fora.) The Puritan contrast gives us a way of thinking about what the Mormons did that was unique and what had been done before.