Mormon Courts

June 5, 2007 | 8 comments
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For the last six months of so, I have been doing a lot of research on nineteenth-century Mormon courts. Earlier today I presented some of my preliminary research to the law school faculty at William & Mary. For those who are interested, you can take a look at my paper online. In doing my research I’ve had a number of discoveries that I’ve found interesting.

First, Mormons have tended to view their own experience as sui generis, but the reality is that lots of religious groups pushed civil litigation into church courts in the colonial period and in the early 19th century. The groups that do this, however, break down on theological lines. Essentially the sects coming out of the radical Reformation or out of Calvism do it, while those coming out of Lutheranism or Anglicanism don’t. Joseph Smith and the earliest Mormon converts came overwhelmingly from these discipline oriented traditions. They tended to be Quakers, the descendents of Puritans, Baptists, Presbyterians, etc. Not all of them, but enough of them to make a difference. After looking at the records of, say Quaker courts, and the earliest Mormon tribunals they are very similar. Mormon courts, however, diverge radically from these earlier Protestant models, creating an integrated judiciary rather than a congregationally based system.

I was also interested to find the extent to which the spectacle of litigation played into Mormon hostility to courts. In the early 19th century courts were prime entertainment, and Brigham Young in particular objected to watching them. The sermons are much like modern attacks against R-rated movies. They center around the idea that certain kinds of entertainment are morally degrading. In this case the entertainment in question was litigation. Finally, it was fascinating to see the way in which the decline of the church court system played out. The church retreated from certain kinds of disputes first. At the same time, you can see the softening of LDS attitudes toward lawyers, and an effort to create a religious narrative for Mormon attorneys.

For the law and Mormonism geeks out there (or just the Mormonism geeks) it is fun stuff.

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8 Responses to Mormon Courts

  1. Susan S on June 6, 2007 at 1:12 am

    So how did the presentation go? What was the feedback?

  2. S.P. Bailey on June 6, 2007 at 3:05 pm

    Interesting Nate. Thanks for posting. I remember the summaries of church court cases in Zion in the Courts, and I wanted more. Can you talk about the church court documents to which you were granted access? What are the documents like? Who were the authors? Are they just notes or was there systematic recording of proceedings? Was there any effort to maintain some of institutional memory that gave the records anything like precedential value? Are names included in the documents? Are or were the documents considered confidential in the sense that present church disciplinary documents would be (e.g., the church would undoubtedly assert the clergy privilege if someone attempted to discover records from a contemporary excommunication proceeding)?

    I could ask more questions, but that seems like more than enough for now!

  3. Dave on June 6, 2007 at 11:32 pm

    Granted, the Mormon ecclesiastical hierarchy is very integrated, but is the LDS court system really integrated? While there is a right of appeal from LDS courts (termed “disciplinary councils” within the Church), it is not publicized. And I have never heard, even anecdotally, of an appeal that resulted in a reversal of a bishop’s or stake council’s court action. No decision or results, either from an appellate review or from the local court that first hears the matter, are published, even internally. A record is made, but is never circulated. [And it's not a verbatim record, of course, it is a clerk's summary of the proceeding as modified or corrected by the presiding officer.]

    It’s possible the LDS system in the 19th century functioned differently than our 21st-century system. And it is certainly true that the present LDS court system has great potential to be an “integrated judiciary.” I just don’t see that any integration has actually been implemented.

  4. Nate Oman on June 7, 2007 at 10:09 am

    Dave: The appellate process functioned quite robustly in the nineteenth century. Few cases were reversed, but that is true of secular courts as well. Furthermore, in contrast to Protestant systems the Mormon judiciary was extremely integrated. (One interesting exception is the Quaker system, which also had a three tiered system of appeals.) Finally, comparing records from church trials with the extant records in civil cases from territorial Utah, I have to say that the records in the church trials strike me as as complete as the secular courts if not more so. In the early and mid nineteenth century it is easy to over-estimate the professionalism of the bench and bar, especially on the frontier.

  5. Nate Oman on June 7, 2007 at 10:24 am

    S.P. Bailey: There are basically three kinds of records for church trials: First, the court documents, which generally consisted of written complaints and answers and occasionally a letter stating the courts decision. Second, minutes from church councils. Third, diary accounts from participants. I haven’t seen any case where all three kinds of records are present. Furthermore, all three kinds of records are publically available. The Selected Collections DVDs published by the church archives a number of years ago contain the High Council Minutes from Kirtland and Winter Quarters, as well as court documents from Nauvoo. _The Far West Record_ contains High Council minutes from Missouri. In the 1960s, the earliest minutes of the Salt Lake High Council were published in a very obscure little book on the Old Fort in Salt Lake City. In addition, the Selected Collections DVDs contain minutes from the Kirtland Teachers Quorum, and the minutes of the Kirtland Elders Quorum were published a number of years ago. These published records, however, are not as complete as the later Utah period records housed in the Church Archives.There are also a fair number of accounts of church trials in early Utah newspapers, as well as discussions of the church judiciary in some government documents from the nineteenth century. The relative completeness of the records varies dramatically from case to case, and there are very few cases with a complete record.

    The Church currently claims that the records in most nineteenth century church courts are subject to confidentiality requirements, although there is some inconsistency on this. If you look at the published Nauvoo court papers, the names of those involved in sexual transgressions have been redacted, while the names of those involved in ordinary civil disputes before church courts have not been redacted. The confidential status of church courts in the nineteenth century seems to have been inconsistent. High Councils frequently conducted public hearings, at least into the 1850s and 1860s. On the other hand, I do think that during the same time some church trials were conducted confidentially.

    There doesn’t seem to have been any concept of precedent, but the FP did send out letters to stake presidents and bishops that seem to be taking more or less consistent positions on certain issues. Likewise, visiting authorities would instruct local leaders on the conduct of church trials during stake conferences and the like. Hence, there was some attempt to create uniformity, but nothing like stare discisis. Also during the period from 1846 to 1850 the High Councils of Winter Quarters and Salt Lake were the only functioning governments in those settlements, they exercised civil and criminal jurisdiction (whipping was the preferred punishment) and at least in Salt Lake they promulgated written rules (mainly about stray cattle) which were actually printed. (Copies are available in the BYU Special Collections.)

  6. Nate Oman on June 7, 2007 at 10:27 am

    Mom: The presentation went well. The faculty seemed interested, there was a good turn out, and I got some useful feedback. I am hoping to workshop this research later this summer at the University of Richmond, and perhaps at the ABF-Chicago-Kent Law School legal history colloquim this fall. We’ll see. I think that the perception was that this was a strange but interesting and surprising topic.

  7. Jim Cobabe on June 7, 2007 at 3:01 pm

    Journal entry from Hyrum Smith Neibaur, at Heber Utah. Marks the occasion of an apparent disciplinary hearing, to settle a dispute over “slanderous talk”, seems to have been conducted before the Teacher’s Quorum.

    Feb 5 1894 – was the day or evening we attended a trial or a hearing before the teachers for a difficulty that had arisen between Lotty and Milley Carhit Hallet, about some slanderous talk that had been going about Mrs. Hallet. After the evidence had been given in, the brethren talked, and it was decided that Lotty was in the fault. They reproved Lotty and she was to ask Sister Hallit’s forgiveness. After considerable talk and by request Lotty very reluctantly asked Millie’s forgiveness. They shook hands and made up friends and we all shook hands and asked the blessings of the Lord to rest upon each other. Most all cried and shed tears for joy. We then went to our homes. It was about 12 oclock at night when we got home.

  8. Ken on June 9, 2007 at 8:46 pm

    #5: “… was some attempt to create uniformity, but nothing like stare discisis. …”

    Stare discisis? Sounds like a horrible disease! (Sorry, Mr./Doctor/Professor Oman. My intelligence is limited to such an extent that my contribution is confined to needling my betters over unintentional errors in typography and spelling. ;-D) I now genuflect in reverential awe at your superior intellect, slink back into the comfortable shadows of Lurk Mode, and return you to your regularly-scheduled programming.

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