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:
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.