For those who are interested in Mormon legal history, my article “Preaching to the Court House and Judging in the Temple” was just published in the most recent issue of the BYU Law Review. (You can download a copy of the article here.) This article provides my own take on the rise and fall of civil cases in church courts in the nineteenth-century. Of course the story of how nineteenth-century Mormons took lawsuits over broken contracts, wandering cows, disputed property lines, and the like to their local bishops has been told before, most elaborately in Ed Firmage and Collin Mangrum’s book Zion in the Courts, which was published about twenty-years ago. Here is where my take differs from previous interpretations.
First, I think that the rise of Mormon courts cannot be told as simply a Mormon story. Latter-day Saints were not the only religionists taking civil cases to church courts. Indeed, for a wide swath of Protestantism — essentially Calvinists and folks coming out of the Radical Reformation like Baptists and Quakers — the notion that suing before the ungodly should be replaced with suing before the church was common place. The Mormon experience should be seen as an extension of this tradition, albeit and extension that ultimately resulted in a set of institutions with a distinctively Mormon flair. Still, at the beginning of fthe process, Mormons look almost exactly like Quakers or Baptists on this issue, which given the fact that so many Mormon converts were Quakers and Baptists is hardly surprising.
Second, I think that much of the Mormon critique of litigation revolved around litigation as a civic spectacle. What I mean by this was that a large part of what folks like Brigham Young hated about lawyers and litigation was not simply the expense or the bad feelings. It was the way that litigation functioned as public celebration of a particular vision of civic life, one that was brawling, individualistic, and frequently drunk. The point is important because litigation had a more central civic role in the early nineteenth century than it does today. Courts were one of the few public manifestations of the state in an era of dramatically smaller government, and people regarded watching litigation as a major pass time. The emphasis on litigation as spectacle allows us to understand better what Mormon courts were doing. They were not simply trying to maintain good feelings or apply different substantive rules than those found in the secular courts. Indeed, in many ways they were hostile to the very idea of applying rules. Rather a key part of what they were doing was creating a counter spectacle, one that centered around Christian narratives of sin, redemption, and reconciliation, rather than the dominant narratives of democracy and individualism.
Third, Mormon lawyers did not take their designation as social parasites lying down. Rather, from the beginning they sought to create a religiously legitimate narrative of what they were doing, one that centered on the notion of the learned professional as a high-minded peace maker, rather than a brawling courtroom charlatan. This counter narrative within the Mormon discussion must also be seen as more than simply a Mormon story. One of the things that Mormon lawyers did was to adopt and “Mormonize” (if that is a word) the developing professional ideals of the bar, ideals that were tied closely to replacement of law office training with law school training. Ultimately, the Mormon lawyers’ counter narrative came to be adopted by Church leaders, including Brigham Young.
Fourth, just as the rise of Mormon adjudication can’t be seen as a purely Mormon story, so to its decline must be seen in a broader context. The end of the civil jurisdiction of Mormon courts is generally told as part of the broader retrenchment of Mormon society in the wake of the Manifesto and the decline of theocratic Zion-building. 1890, however, is not a particularly important date if one looks at the practices of Mormon courts. Indeed, in the late 1910s James E. Talmage was preaching against secular litigation and counseling members to take their disputes before the bishops. Likewise, I have copies of pre-printed forms from the 1920s that members were supposed to use to commence church lawsuits against other members. To be sure, Mormon hostility to the common law was a bone of contention and civil litigation in church courts emerged as an example of Mormon abuses in Utah during the Smoot hearings. However, a more important source in the decline of church-based litigation was simply the changing nature of litigation generally as the nineteenth century progresses. Law became increasingly technical, impersonal, networked, complex, and remedially demanding. The church court system that did such a good job resolving disputes between neighbors over a wander cow did not function well in an impersonal credit economy where many of the primary actors were corporations.
The Mormon court system is a nice example of how deepening our understanding of Mormon stories, institutions, and practices may — ironically — require that we view them as less Mormon. The New Mormon History ushered in by Arrington and his disciples was — for all of its insistence on academic professionalism — in many ways an inward looking program. This is not meant as a criticism. We are all massively in the debt of those intrepid intellectual pioneers who excavated underneath the traditional hagiographies to nail down the wealth of concrete detail and complexity in the Mormon past. We owe to these scholars the more fully rounded vision of the Mormon past that we now have. Increasingly, however, I think that value added in Mormon history will come not from nailing down the specifics of our stories in ever more exacting detail. Rather, it will come from trying to connect Mormon stories to those that are not overtly about the Latter-day Saints. Hence, to understand the nineteenth-century church court system we must see it not simply as a reflection of Mormon Zion building and the retreat from Mormon theocracy. We must also see these courts as part of an Atlantic story of disciplined oriented Protestantism and a window into understanding the contested and shifting role of litigation in American public life.