Brigham Young and the Spectacle of Litigation

February 16, 2007 | 15 comments
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On February 24, 1856, Brigham Young delivered a blistering attack on lawyers and law courts. He began his denunciation by describing the performance of a lawyer that he had observed the day before. “[H]e was so serious, so religious, so pious, and so honest, that he appealed to high heaven to witness his honesty before the jury,” said Young, but “when he had induced the jury to believe that he was honest, he stood there and misrepresented the merits of the case for half an hour at a stretch, in regular lawyer style.” Such conduct, he insisted, was particularly objectionable when done by Mormon lawyers at the instigation of Mormon clients. “Does the Lord love you’re your conduct when you drag each other before the ungodly? . . . Do you think He has fellowship with your conduct in such things? No, you do not.” However, while Young’s remarks were “severe upon the lawyers” (and their clients), he spent the bulk of the sermon castigating the spectators at the trial.

It is a shame for men to be found loafing about in such places, where there is contention and quarrelling, and every stratagem that can be used to deceive juries and witnesses, and lying before them with all the grace and sanctity of a Saint, pretending to be one. Such a place is darker to me than midnight darkness.

In part, he was appalled at the idleness of the spectators. Such men, he said, ought to be “raising grain, potatoes, and other articles of food, instead of following after courts and the nonsense, wickedness, and lying associated with them.” It was not simply the waste of time, however, that attracted Young’s wrath. Rather, he thought that the spectacle itself was degrading. “Elders of Israel . . . throng to such a place, and that too when no spirit reigns there but the devil’s spirit, . . . [Y]ou can get nothing from that den but the principles of hell.” Even more colorfully, he called the show of litigation “[t]he fog, the froth, and spawn of hell, and they [i.e. the spectators] feast upon it.”

Young’s attack on litigation is reminiscent of puritanical sermons against the theater over the centuries. While Young himself was not opposed to theatricals, his attack on litigation shares with the religious denunciation of theaters a basic concern for the moral consequences of watching sin and wickedness as entertainment. In Young’s view, litigation was a battle of wits between amoral lawyers, an exciting spectacle but ultimately a degrading one. It was not simply the contentiousness of litigation or the dishonesty of the lawyers themselves that was objectionable. It was the moral impact on the community of placing such a spectacle at the center of civic life. Seen in these terms, the move to bring litigation within the church was a move to transform the public meaning of dispute resolution. To be sure, prior to the arrival of the first non-Mormon federal appointees to the Utah Territorial bench, the Mormons had their own muted version of court day. In 1852, shortly after the Territory of Utah was organized, Zerubabbel Snow, a Mormon attorney who had been appointed Chief Justice of the new Territorial Supreme Court, road circuit through the far-flung settlements inaugurating the first district courts. However, he did not enter town as the head of a judicial entourage with lawyers in tow. Rather, he came as a small part of a much larger party led by Brigham Young, who spoke to the citizens as territorial Governor and – far more importantly from the point of view of the settlers – preached to them as living prophet and leader of their church. In this theo-political pageant Justice Snow was a decidedly bit player.

In place of the secular ritual of court day, the Church courts offered their own set of public symbols. In at least some cases, the adjudication was open to the public, and church trials were sometimes announced in advance in local newspapers. While parties occasionally retained attorneys to represent them before a High Council – particularly when resort to the church court was one move in protracted litigation spanning both secular and ecclesiastical tribunals – generally speaking lawyers were excluded from the proceedings. In accordance with rules laid down by Joseph Smith, however, an equal number of High Councilors were assigned to speak on either side of a case when the council deliberated. The rule was less of a surrogate for representation than a device to insure the appearance (and hopefully the reality) of even-handed deliberation. Likewise, the absence of technical rules of evidence was supposed to insure that church courts could reach the truth of the matter. In contrast, said Young, “juries are liable to be deceived.” Perhaps most dramatically, decisions by church courts frequently required erring parties to publicly confess their sins before their congregation. Likewise quarrelling members were often required to engage in acts of public reconciliation. In short, ecclesiastical courts transformed adjudication from a spectacle of amoral attorneys engaged in a battle of wits into an essentially Christian drama of sin, confession, reconciliation, and public redemption. As the minutes of one early meeting put it, “All differences settled & hearts of all run together in love.”

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15 Responses to Brigham Young and the Spectacle of Litigation

  1. gst on February 16, 2007 at 5:58 pm

    Classic Oman stuff.

  2. gst on February 16, 2007 at 6:06 pm

    “In accordance with rules laid down by Joseph Smith, however, an equal number of High Councilors were assigned to speak on either side of a case when the council deliberated.”

    My understanding of modern church courts, obtained second-hand, believe it or not, is that one member of the high council is appointed advocate of the accused, but that the duties and responsibilities of the advocate are not clear. My dad was once appointed advocate and several members of the court seemed upset that he urged that the woman not be excommunicated. The modern practice of appointing an advocate seems like representation, rather than the even-deliberation mechanism that Joseph set up.

  3. S.P. Bailey on February 16, 2007 at 6:13 pm

    The tie between puritan theatre denunciation and litigation denunciation seems right. Yet do we have a detailed sense for what litigation looked like at the time? How much lying and general sleeziness was there really? Was it much worse than present litigation? (In the case referenced, was BY a party or witness? Did he really know that the lawyer was lying?)

    And did BY secretly wish he was a lawyer? (I can’t imagine him as anything but curious, knowledgable, loquatious, tireless, detail-oriented, helpful, sure he is right, always ready for a good fight, etc., etc.)

    Interesting how foreign the theatre-litigation denunciation tie strikes me now: after the temple, my home, and church, I think of courts and theatres as special, virtuous places. Maybe not holy, but honorable. As good as fallen people from various backgrounds can muster.

    Except for extremely rare front-page-news cases, litigation these days is thoroughly domesticated and not a spectator sport. This is not a good thing! My inner Rumpole mourned the fact that nobody, not one soul, (excluding parties, justices, clerks, counsel, and security) attended arguments I recently presented in a state supreme court.

    Anyway, Nate, it would be interesting to make connections between church courts and increasingly important alternative dispute procedures which are more conciliatory, perhaps more conducive to Zion.

  4. Doc on February 16, 2007 at 6:29 pm

    What BY would really denounce is the “reality television” pumped into our home. He is turning in his grave as we speak I am certain.

  5. Nick Literski on February 16, 2007 at 7:14 pm

    When I served as stake executive secretary, the stake president trained the high council a few times on disciplinary council procedures. His instruction (based on that of the Seventy to whom he reported) was that those who were to speak “on the side of the accused” were specifically NOT advocates. Rather, their sole role was to see that the individual’s rights were respected and (s)he was treated fairly.

    Along the same lines, there is a misconception that the high council reaches a decision. The stake president, with the counsel of his two counselors, makes the decision on his own, and then calls upon the high council to “sustain” his decision—which naturally is always done in today’s version of “common consent.”

  6. Ardis Parshall on February 16, 2007 at 9:31 pm

    “In accordance with rules laid down by Joseph Smith, however, an equal number of High Councilors were assigned to speak on either side of a case when the council deliberated. The rule was less of a surrogate for representation than a device to insure the appearance (and hopefully the reality) of even-handed deliberation.”

    Hopefully this isn’t entirely a threadjack: D&C 102 sets out the rules for high councilors speaking on each side. Verses 13 and 14 say that in “difficult” and “more difficult” cases, more councilors speak for each side. Any ideas about what makes a case “difficult”? Is it the complexity of the issue, or the seriousness of the charge, or — ? (I’m studying the story of a great aunt, whose case was designated as “difficult,” and I’m wondering what that might tell me about the whole matter.)

  7. Emma's Son on February 16, 2007 at 10:31 pm

    A number of years ago I read a transcript of one of those courts in Far West in which JS was the advocate. It was an intriguing case and JS was passionate for his guilty fellow saint. I’m sorry I forget the book it was published in. However, the story involved a priesthood leader who presided in one of the outlying towns surrounding Far West. He convinced a much younger women over a long period of time that her husband who had gone away on business was dead and he knew by revelation from the Lord she was to marry him. Well you guessed it on the very day the wedding was to happen the husband rode back into town. This man ended up in one of those courts where all the evidence and confession was heard in public. JS didn’t preside in this court, but his pleading saved the man’s membership though he lost his position and priesthood. Perhaps someone out there could come up with the reference?

  8. Nate Oman on February 16, 2007 at 11:28 pm

    Emma’s Son: I have read the record in that case as well. It think it is published in _Far West Record_, Donald Cannon & Andrew Ehat eds.

  9. MLU on February 17, 2007 at 1:54 am

    Likewise, the absence of technical rules of evidence was supposed to insure that church courts could reach the truth of the matter.

    This touches on an issue that events have pressed upon me. Specifically, a criminal situation in which attorneys are using technical arguments to get a result that ignores the truth, mostly because the truth is not in any doubt and would condemn the defendant–who, from my point of view, should be locked away until the end of time. I need to think about alternatives to the adversary system, which seems to lead quite easily to a disregard for truth.

    Would anyone be able to recommend a few readings to get started? Nate, are your sources for the above account published somewhere?

  10. DavidH on February 17, 2007 at 12:41 pm

    A couple of small quibbles.

    1. I do not think it is fair to consider section 102 as a revelation, or even as having being “laid down by Joseph Smith”, in the sense of having been devised by him, rather than accepted or approved by him.

    As Bushman points out in RSR, section 102 is a set of minutes (albeit later “edited” by Joseph Smith) that “regularized and extended procedures that had been developing for years” in high councils. RSR at 256.

    2. Section 102 does not explicitly call for half the council to take the side of the accused and half the council to take the “side” of the Church, even though I have heard it explained that way several times.

    All members who speak are to “present the case, after the evidence is examined, in its true light before the council; and every man is to speak according to equity and justice.” Those who draw even numbers are to “stand up in behalf of the accused, and prevent insult and injustice.” Verses 16-17. Section 15 also states that “[t]he accused, in all cases, has the right to one-half of the council, to prevent insult or injustice.”

    Nowhere does section 102 say that the other half of the council is supposed to take the “side” of the Church, or even a “side” that “prosecutes” or “opposes” the accused. As I read it, all members take the “side” of “equity and justice”, but one half the council has the especial duty of preventing “insult or injustice” to the accused. In other words, the other half’s only duty is to speak according to “equity and justice.”

  11. Nate Oman on February 17, 2007 at 8:03 pm

    DavidH: Section 102 is a redacted version of the minutes of a meeting of the Kirtland High Council in 1834. If you read the original version of the minutes what you find is not the formally stated procedure laid out in the cannonized minutes written by Hyde and Cowdrey, but rather an extended sermon by Joseph Smith laying out the procedures in the context of explaining the ancient order of things revealed to him.

  12. DavidH on February 17, 2007 at 8:42 pm

    Nate,

    I have not seen the unrevised minutes of the February 17, 1834 meeting or any other of the original documents.

    Are you saying that Bushman is incorrect in characterizing section 102 as a “revelation through a council” in the following summary:

    “The minutes regularized and extended procedures that had been developing for years . . . .The establishment of a governing body by members of the council themselves gave their work the status of revelation. The minutes of the council were included in the Doctrine & Covenants alongside revelations coming directly to Joseph Smith. By putting the work of the councils on the same plane as his own revelations, Joseph set a precedent for inspiration other than his own: revelation through a council.” RSR at 256.

  13. Nate Oman on February 17, 2007 at 9:59 pm

    DavidH: What happened at the meeting is that Joseph Smith gave a sermon in which he talked about how in the ancient days the “Council of the Church” sat at Jerusalem and Peter was the head. He then went on to say that the procedures he was teaching the Kirtland High Council were those used anciently. (He also called upon the members of the High Council to treat their callings with greater seriousness, etc. like the ancient members of the council.) Men were then called and assigned numbers by lot to govern their speaking assignments in council. All of this was taken down by Orson Hyde, who was clerk of the council. The council then voted that Hyde prepare a redacted version of the minutes. This version strips out the narrative context in which Joseph couched his teachings, providing a bare bones of the procedure to be used and the actions of the council. These minutes redacted minutes were then read to the council, which then voted on them. The redacted version of the minutes is the one included as Section 102. I think that this process is broadly consistent with Bushman’s interpretation. What is missing in Bushman’s account is the shift that occurs from Joseph’s mytho-poetic sermon to the institutionalized voice of the minutes. Also one might conclude — mistakenly I believe — that the Kirtland High Council collectively authored the procedures. I don’t think this is true. I think that they were given by Joseph Smith to the council, which then voted to accept them.

  14. Nate Oman on February 17, 2007 at 10:05 pm

    MLU: This post comes out of my current research on church courts. I hope to publish an extended article on the topic in the next year or so. The most comprehensive source of church courts currently in print is Edwin Brown Firmage & Richard Collin Mangrum _Zion in the Courts_ (Illinois UP 1988).

  15. DavidH on February 18, 2007 at 12:42 am

    Thanks Nate.

    I would be curious why Bushman reached the conclusion that section 102 was a “revelation through a council” and why he charactreizes this section as a “regulariz[ation] and exten[sion] of procedures” that had been evolving.

    I take it you do not agree with Bushman’s calling section 102 “revelation through a council”, except perhaps in a sense that a council was present.

    Do you agree with Bushman that the procedures had been evolving and developing through and at least until section 102 (including the 1835 addition)? Do you know what new procedures did Joseph lay out that had not already existed or which ones did he change?

    Also, based on your study of the full minutes and notes–as well as other “legislative history” of section 102–do you disagree with my reading that the odd numbered high councilors are not assigned to “represent the Church’s interest” and not supposed to take anything like a prosecutor role, but are simply to speak according to “equity and justice”?

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