Preaching to the Court House and Judging in the Temple

February 16, 2008 | 5 comments
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For the last year or so, I have been doing research on Mormon church courts in the nineteenth century. Until about 1900, it was expected that Mormons would not sue other Mormons in secular courts, but would take their disputes to their local bishop or high council. I’ve been looking at three inter-related questions: How did the Mormon court system develop, why did Latter-day Saints take civil disputes to church courts, and why did they ultimately abandon the church courts? I have now posted a more or less final version of my paper on SSRN, where you can down load it.

I found a number of interesting things:

*Mormons were not the only ones to resolve civil disputes in church courts, but they did seem to hang on to the practice longer than others.
*Lawyers sometimes represented parties before church courts, and church leaders sometimes sought legal counsel on how to deal with difficult cases.
*Territorial laws endowed church courts with essentially all of the powers of secular courts, although it is unclear whether these territorial statutes were ever used.
*Part of Brigham Young’s objection to litigation was the fact that people found it entertaining. One suspects that he would condemn “Law & Order: SVU” today.
*Even during the nineteenth century, Mormons sued each other quite a bit in secular court.
*Brigham Young once served as an attorney for the defendant in a murder trial. (He got his client off.)

If you are interested, I hope that you’ll take the time to look at the paper. For those interested in such things, here is the abstract:

Preaching to the Court House and Judging in the Temple

A number of American religious denominations – Quakers, Baptists, Mormons, and others – have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century’s end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession’s claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons’ rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the “public law” side of this story, showing how the federal government’s effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

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5 Responses to Preaching to the Court House and Judging in the Temple

  1. Russ Frandsen on February 16, 2008 at 11:36 pm

    Nate,

    I have just downloaded your paper, but i have not read it yet. What have you found that is not covered in Firmage’s book, Zion in the Courts? How do you differ in interpretation?

    Russ Frandsen

  2. Ronan on February 17, 2008 at 3:25 pm

    Nate,
    Slightly off topic, but you may have noticed the stink caused by the Archbishop of Canterbury’s suggestion that some forms of sharia law be accepted in the UK. The idiot press have made it out to be an endorsement of flogging women, but the truth is simpler: why not let religious courts help settle civil disputes?

  3. Nate Oman on February 17, 2008 at 5:45 pm

    Russ: Once you’ve read the paper, I would love to get your thoughts on how it adds to ZIC. I think of myself as building on Mangrum & Firmage’s work. In particular, I tried to place both the rise and the decline of the Mormon judiciary in a broader context, showing how in many ways it emerged from a particular, discipline-oriented strand of Protestantism with roots in the Radical Reformation, and showing how its decline coincided with a growth in legal complexity, particularlly in the Western United States. Along the way, I also make some lawyer points, such as the way that the church court’s lack of in rem remedies contributed to their decline, and the mechanisms by which early Utah territorial statutes conferred essentially all of the powers of secular courts on church courts. (Although I don’t think that these statutes ever operated fully.) And so on. Read it and tell me what you think!

    Ronan: I haven’t been following the controversy around the archbishop in particular, although I am interested in the application of shar’ia law in western legal systems. In principle, I don’t have a problem with parties submitting disputes to shar’ia courts, although in practice their commercial law is woefully under-developed and some of their family law rules can be pretty harsh on divorcees and mothers. There are also some real issues of how consensual the parties submission to shar’ia courts is, although I am suspicious of those who assume coercion simply because the substantive rules differ widely from western norms.

    FWIW, there is a section in this paper where I compare Mormon “jurisprudence” in the nineteenth century (such as it was) with Islamic law, trying to tease out why Mormonism took the particular path that it did legally speaking.

  4. Paul Reeve on February 18, 2008 at 12:57 pm

    Nate, I look forward to reading the paper. Thanks for sharing it. Did you uncover any evidence of Teacher’s Quorum courts? The Hebron, Utah ward record includes the practice of the Teachers (an adult quorum, of course) as the first line of defense in dispute resolution (as per D&C 20). If the Teachers couldn’t handle it, then it went to a bishop’s court. I’ve never heard of this as a common practice or documented elsewhere.

  5. Nate Oman on February 18, 2008 at 1:06 pm

    Paul: I have looked at the minutes of the Kirtland Teacher’s Quorum. I didn’t see them doing any adjudication, but they were clearly doing a lot of mediation. I have read minutes of the Kirtland Elders Quorum, which was clearly doing a lot of adjudicating. Also, Talmage talks a bit about priesthood quorum adjudication in his testimony before the Smoot Hearings.

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