A few days ago, I had the rare experience of actually having enough time to sit in my study and read. I pulled my copy of John Adams’s legal papers (I only have volume I, if you have volumes II or III and are interested in selling, contact me), and read through a couple of his cases. Adams, of course, was a lawyer, and in his time he was one of the busiest and most successful lawyers in the Massachusetts Bay Colony. He kept notes on most of the cases that he argued, and these generally consist of a short hand account of the trial and occasionally research notes for his arguments. The legal papers consist of transcripts of these notes, with each case being proceeded by a few paragraphs explaining the basic issue in the controversy as well as a little background on the time and place of the trial.
The Adams legal papers have the advantage of being an easily identifiable corpus. You open the book and you read Adams’s notes. A part of the project to publish Joseph Smith’s papers consists of several projeced volumes of Joseph Smith’s legal papers. An article in the most recent issue of BYU Studies, which was generated by work on this project, suggests to me that that Joseph’s legal papers are, in some ways, going to be much more difficult than Adams’s papers. The article is a treatment of an action in Ohio that Joseph Smith instituted against an early anti-Mormon named Hurlburt, who had threatened to kill Joseph. It is a good article. It is based on documents produced during the course of the trial, contemporary newspaper articles, local histories, diary entries, and minutes of church proceedings. It obviously represents a lot of painstaking and comprehensive research, and that, it seems to me, is the problem.
Joseph was not a lawyer, and he does not seem to have kept detailed notes about his various legal proceedings. So what exactly constitute “The Legal Papers of Joseph Smith”? With Adams it was easy to identify the scope of these “papers,” but not so with Joseph. It seems to me, that there are two poles in answering this question. The minimalist pole would say that Joseph Smith’s legal papers consist only of actual legal documents related in some way to Joseph Smith. Hence, one could include court documents — pleadings, records of verdicts, affidavits, etc. — and non-court legal documents such as contracts, real estate deeds, negotiable instruments (notes), wills, etc. At the other extreme one could define legal papers as including any document that would shed light on Joseph Smith’s legal affairs. Hence, we would include letters, diaries, minutes, newspaper articles, and the like referencing Joseph’s legal troubles.
It seems to me that there is a second issue in compiling Joseph Smith’s legal papers and that is the question of annotations. If you look at the volumes of Joseph Smith papers produced thus far by Dean Jesse, what you notice is that that they contain fairly detailed annotations, including a biographical sketch of every person referenced in the papers, extensive footnotes on chronology, etc., and introductory material suggesting interpretations of various documents. Are the Joseph Smith legal papers to be accompanied by similarly lavish annotations?
The answers to these questions are important, because depending on what answers one gives the final publication of Joseph’s legal papers could be put off by years and even decades. Which brings up the even more fundamental question of why it is that these papers are being published. Thinking through this issue, however, suggests — to my mind — that less is more.
Mormon legal history is just beginning to get done. Thus far, virtually all of the serious academic attention has been focused on the Utah period and the anti-polygamy battles and their aftermath. With a few exceptions, very, very little has been done on Mormon legal history during the lifetime of Joseph Smith. Given this scholarly reality, I think that it is absolutely vital to think about the Joseph Smith legal papers as the very beginning of the research and not as some sort a grand summation of an intellectual project that by and large has not yet occurred. What this means, in my view, is that the papers should NOT try to offer a comprehensive view of Joseph’s legal experience. They should NOT try to offer ambitious interpretations of that experience. They should NOT attempt to nail down all of the details of that experience. Rather, they should be viewed as a catalyst for a new conversation, a resource of important documents but NOT a repository for ALL of the relevant documents. Because the conversation on Mormon legal history is still in its first faltering stages, it is more important to get a core set of documents published as soon as possible to encourage that conversation, rather than labor for decades to produce a massive set of volumes that aim at definitively documenting and interpreting it.
Hence, it seems to me that Mormon history is best served by a narrow definition of “Joseph Smith’s Legal Papers” and a commitment to light annotations that will allow the volumes to be produced relatively quickly. Once the core set of purely legal documents are published, scholars can go to work on tracking down the letters, diaries, minutes, and newspaper articles that can fill in the details and begin writing the articles and books that will offer interpretations of the bare bones published in the legal papers volumes. This work, however, need not be done in the volumes of the legal papers themselves. It is best left for journal articles and books. Furthermore, a minimalist approach to editing the legal papers will free up those interested in such things from the task of compiling the papers and will let them get down to the as yet largely undone work of writing Mormon legal history.
Nate,
You may want to draft a short essay, article, or letter to a mormon studies publication to make sure those involved get a glimpse of your perspective. After all, we can’t be 100% sure they read T&S, and I think you raise some very valid points that ought to be taken into consideration by the “powers-that-be.”
Interesting comments, Nate.
Below is a paragraph from a letter I wrote to family and friends reporting on the MHA Conference a couple of weeks ago in Vermont, which I thought some might find interesting:
That night there was a reception. Among the things on
display were images from the new Joseph Smith Papers
Project. The cover art for the books is beautiful.
They had a couple of the book manuscripts out in
draft, spiral-bound form, so you could get a sense for
the scholarship. They tentatively had covers for five
series, with three volumes each, for a total of 15
volumes: Journals, History, Documents, Legal and
Correspondence. But I later spoke with Jack Welch,
and he told me that there may be more like 20 volumes.
For instance, they haven’t decided yet what to call
the “Administrative” series (minutes and the like).
And he also made a very good point that I hadn’t even
thought of: what do you do with the Book of Mormon,
JST, Book of Abraham, etc.? How can you have a
complete Joseph Smith Papers without that stuff?
(Some argue that Joseph didn’t “write” those things,
but he discounted that POV, and I would agree with
him.) And how do you present those things? And will
the Scripture Committee give them permission to do it,
since they are very picky about the BoM in particular?
So while they have made tremendous progress, there is
a lot yet to do and figure out.
“At the other extreme one could define legal papers as including any document that would shed light on Joseph Smith’s legal affairs. ”
A religious leader involved in secular affairs complicates the picture all the more. Are the marriage licenses to be included? They are legal documents with JS’s signature. What about the Kirtland Safety Society notes and other temple-related notes. What about the Jackson County consecration deeds without JS’s signature but which come about because of this revelations. Etc, etc. The potential documents to be included are endless.
“Hence, it seems to me that Mormon history is best served by a narrow definition of “Joseph Smith’s Legal Papers” and a commitment to light annotations that will allow the volumes to be produced relatively quickly. ”
I agree with the light annotations part, but I don’t see how an argument about the infancy of legal history has much to do with a minimalist argument for document collection. Documents are one thing, annotation another. The fact is paper series do not reach second editions; everything that scholars might find useful has to be included now, or otherwise added in addendum volumes or on-line. When it comes to potential scholarly resources, I would rather cut the swath too wide than too narrow.
BTW, Jessee’s annotations are generally viewed as light, not heavy. He has long headnotes but rather infrequent footnotes.
Jed: I think that it would be a mistake to think of “legal papers” purely in terms of litigation. A lot of the most important legal activities are transactional, and I think that this is probably especially true in Joseph Smith’s case. So I would suggest that liscenses, notes, and deeds with Joseph’s signature on them be included. I would not include other deeds, since the category of papers-generated-in-response-to-Joseph’s-revelations is so impossibly broad that it could arguably include virtually ALL Mormon documents.
I don’t really have any sense of what the editors are currently thinking about including, but my worry is that publication will be perpetually delayed while additional documents are gathered. Are they going to include newspaper articles, non-Joseph Smith diary materials, or non-Joseph Smith correspondence? Rather than collecting everything into a single place, it makes sense to me to have the purely legal documents in one place, but expect researchers to find ancillary materials elsewhere.
Nate, I don’t have anything to say about what should be done in the editing of Joseph Smith’s legal papers, but if this is what happens when you get a few moments to read in your study, you need to find a way to get more time to do that.
I’m glad to see this topic raised, even if (as Nate says) he has no sense of what the editors are thinking at this time. Indeed, there have been very lengthy and interesting discussions on the Joseph Smith Papers board in this regard. And those discussions are still taking shape.
Nate is right that the study of Joseph Smith and the law is in its infancy. When I was involved 1988-1991 in producing the Encyclopedia of Mormonism and edited the article by Joseph I. Bentley, “Joseph Smith, Legal Trials of” (3:1346), we allowed that “Joseph Smith was subjected to approximately thirty criminal actions and at least that many civil suits related to debt collection or failed financial ventures.” We now know that the number is more like three times that many, and we’re still finding papers that Nate would consider actual, core legal documents. Even getting a minimalist publication of these items will not happen over night, but we have no desire to delay.
These newly found materials will open up many new avenues of inquiry regarding Joseph Smith’s life’s work. That’s why we are determined to publish certain key findings in places like BYU Studies as we go along. Jed is absolutely correct that Papers publications usually don’t get to go into a second printing, and so we want to get much of our findings peer reviewed and out into circulation for comment, reaction, and refinement as soon as possible, so that the Legal Papers volumes can serve well for many years to come. The article about the Hurlbut case is just one example. Gordon Madsen’s article in the previous issue of BYU Studies on the law of treason is another. The plan is that by covering many details in articles such as these we won’t have to repeat that information in depth in the Papers volumes themselves. We hope that many people will take a serious interest in this research venture as it develops.
Of course we have struggled to define what should be included as a “legal paper.” This has proven to be a challenging question. Having spent time with the Adams Legal Papers, I am certain that even in the case of John Adams it was not easy for the editors to know where to draw the line between legal and non-legal materials. Nate underestimates when he assumes that in the Adams case the outer limits of the legal corpus were “easily identifiable.” Drawing such lines is always somewhat arbitrary, or at least pragmatic, not rational.
In our case, we will not include such things as correspondence, diaries, minutes, newspaper articles, etc., simply because those items will be included (if at all) in the documents volumes or elsewhere in the Joseph Smith Papers. We plan to included all court papers and many transactional documents, but we’re still open to the question of where the ends of the law are found. Joseph Smith served as a judge and handed down judicial opinions. Do they get included? (yes). What about his court martial actions as head of the Nauvoo Legion? (probably). Joseph Smith signed numerous deeds in Nauvoo. Do they all get included? (no, but representative deeds, yes). What about the Navuoo City Charter? (I hope so). Marriage licenses? (at least some, which do bear his signature). How far after his death do we go? Settling his estate? (it was a complicated legal matter). The Carthage trials (sure, but how much?)
We do not plan to include “lavish annotations,” but we hope to shed light on obscure terminology and archaic practices. We don’t plan to give a biographical note on every person named in any legal document, but some of these legal combatants will need to be properly introduced. We are still wondering: what do we actually put on paper, or (as long as we’ve gathered them) should we include a CD filled with a rich array of sources and resources? The more we get into this material, the more it becomes clear: In order to get a true and clear picture of Joseph Smith’s extensive involvement with the law, more than a minimalist view is necessary, simply because his legal involvement was not a minor part of his life. It therefore cannot rightly be minimized.
It is true that Joseph Smith was not a “lawyer,” as Nate observes, but then no one was a lawyer in the 1830s in the same sense as lawyers are lawyers today. Law school? Case method? Bar exams? Malpractice insurance? Codes of professional responsibility? Not yet. Not really. But still, to people who knew him, Joseph was respected for having as fine a legal mind as anyone they had met. Which again complicates the task of the legal documentary historian.
Fortunately we have Dean Jessee to help us sort out some of these issues, as he oversees the entire JSP project. Dean has been around the block on these issues many times (he would be the first to add, too many times). In general, it is never the purpose of a papers series to try to interpret the documents being presented, but it is the job of editors to contextualize and describe the documents accurately (which is harder than it might appear). Dean has set a good example of the craft of documentary editing in his recently revised edition of the Personal Writing of Joseph Smith. We are likely to follow his lead in handling the legal papers.
So we’ll see how it goes. The good news is that we’re up and running (not walking). We welcome comments and participation (our legal team is not a closed group). I will be teaching a new course this fall at the BYU Law School on Joseph Smith and the Law, in which more of this ground can be broken.
I hope that these brief comments give people an idea of how things are beginning to take shape. Nate and I are in email contact fairly often on a number of issues (I’m proud to say that he still holds the record as the youngest and most precocious intern to have worked for me at BYU Studies).
Will we get these volumes out “relatively quickly”? The answer to that probably depends on what a person thinks is “relatively quick.” The Papers of Thomas Jefferson have been in production for sixty years now (and the editors project that they are about half way through). So, “relatively quick” might still amount to a long time. Nate, it might be interesting to know how long it took the John Adams team to get his legal papers into print.
Thank you for this fascinating update, Jack. The world of Joseph Smith has so many facets to it. The scope of his endeavors and challenges is something to marvel at. We are looking forward to the work of the professionals.