A couple of years ago, I wrote a post on the procedure for excommunicating the President of the Church. In doing a bit of research on the history of the church court system, I came across some interesting complications in the story.
According to D&C 107:82-84:
And inasmuch as a President of the High Priesthood shall transgress, he shall be had in remembrance before the common council of the Church who shall be assisted by twelve counselors of the High Priesthood; And their decision upon his head shall be an end of controversy concerning him. Thus, none shall be exempted from the justice and the laws of God, that all things may be done in order and solemnity before Him, according to truth and righteousness.
This revelation was given in 1835 when the administrative structure of the Church was quite different than it is today. For example, there was little or no congregational structure and no local bishops (a Nauvoo-period innovation). Still, the procedure laid out here seems to be for the Presiding Bishop to convene an extraordinary court with a specially appointed council of twelve high priests (presumably chosen by the bishop). The assumption of this reading is that “common council of the church” refers to the Presiding Bishopric. Interestingly, the current edition of the Doctrine & Covenants drops a footnote for “common council” that references the verses dealing with the bishop, who is referred to as “a common judge among the inhabitants of Zion” (D&C 107:74).
However, there appears to be some question of whether or not this procedure should still be used. On December 24, 1902, the Quorum of the Twelve met with the First Presidency for a regular meeting. Rudger Clawson (one of the twelve) recorded:
Elder Smoot [i.e. Reed Smoot] said that there was diversity of opinion in Utah Stake as to who would sit in judgment if the President of the church were placed on trial. Some claimed that it would be the right of the Presiding Bishopric to try him. Elder Smoot said he did not coincide with this view. The matter might be considered inappropriate for discussion, but he thought the council ought to be agreed touching this question. Elder Smoot said that the revelation which directed that in case the President of the High Priesthood should [be] put upon trial, the Presiding Bishop associated with twelve high priests should constitute the trial court, was given before the church was fully organized and before the Twelve had been chosen.
Pres. Smith [i.e. Joseph F. Smith] suggested that the matter be taken under advisement for one week, which was done.
Elder Clawson doesn’t record the out come of the special committee’s deliberations. However, a few years later President Smith was called to testify before the U.S. Senate as part of the controversy over seating Reed Smoot. During his testimony, he explained to the Senators that as President of the Church he was nevertheless subject to Church discipline. When asked about the procedure, he stated that he would be tried using the ordinary process by the bishop of the ward in which he resided. There are a couple of ways of interpreting President Smith’s statement. First, one could read him as agreeing with Reed Smoot, rejecting the procedure set forth in section 107 in favor of the ordinary disciplinary procedure as it developed thereafter. One possible problem with this view is that normally a Melchizedek Priesthood holder is not tried before a bishop’s court but rather before the Stake High Council, which has both original and appellate jurisdiction. However, I don’t know whether or not this rule had developed by 1904 when President Smith testified before Congress. A second way of reading President Smith’s statement is that the procedure set forth in section 107 remains valid, but that the “common council” referred to is not the Presiding Bishop but rather than bishop of the ward in which the President of the Church resides. If this is the case, then the local bishop would still have to call a special council of twelve high priests for the trial. Such a reading would also mean that there was no appeal from this special bishop’s court to the High Council or anywhere else.
Forty years after President Smith’s testimony before the Smoot Hearings, John A. Widstoe published his book Priesthood and Church Government. In that volume he laid out the procedure for disciplining the President of the Church, adopting the position that jurisdiction lay with the Presiding Bishopric of the Church. The book was published a manual for priesthood quorum teachers, but in the pre-correlation Church that fact standing alone needn’t imply that the question was deliberated over by the Bretheren. (Although it might have been.) The ultimate ambiguity about the procedure, of course, allows one to spin out even more elaborate hypotheticals about constitutional crisis within the Church. One could imagine a situation in which the President of the Church was excommunicated using one procedure, which he refused to acknowledge as legitimate. How would one deal with the resulting confusion about who was President of the Church? Fortunately, I take it that such a scenario is extremely unlikely. Still, my perverse lawyers imagination wants to know how it would be resolved.