This book is a first of its kind. Although hundreds of volumes and articles have been written about Joseph Smith, the prophet and organizer of The Church of Jesus Christ of Latter-day Saints, no book before has ever been dedicated exclusively to assembling materials pertaining to his legal encounters. Those numerous incidents were serious and significant developments in his life personally as well as in the history of his people institutionally. Throughout his life, the courtroom became a familiar setting to him, and resulting judicial outcomes had enormous impacts. One cannot come to grips with the life of Joseph Smith without studying his more than two hundred encounters with judges, lawyers, judicial procedures, legal transactions, and legal principles. And yet no book written about Joseph Smith adequately features or takes this dimension of his life into account. This book is a first step in the direction of allaying that deficiency.
Joseph Smith took the law seriously. In 1835 the first edition of the Doctrine and Covenants, which he approved and published, set forth a statement of beliefs regarding governments and laws in general. It included, “We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments” (D&C 134:5). In 1842 Joseph succinctly declared, “We believe in obeying, honoring, and sustaining the law” (Article of Faith 12). In an editorial penned on February 17, 1844, he wrote, “The constitution expects every man to do his duty; and when he fails the law urges him; or should he do too much, the same master rebukes him.” Although some have questioned if Joseph Smith and his people observed these beliefs in practice—and he was not entirely perfect as a man, as he himself admitted—this collection of materials demonstrates in fascinating detail how he gave much more than mere lip service to obeying, honoring, and sustaining the law. Scrupulously and resourcefully, he walked the rough-and-not-so-ready paths of the still-developing American legal system just one generation before the calamitous U.S. Civil War.
By all measures, Joseph Smith led an amazingly extraordinary life. His accomplishments and endeavors in the face of formidable odds are bewildering. While people may variously agree or disagree with his theology, politics, management style or sociality, few would disagree with the strong consensus that emerged from a prestigious panel of speakers at his bicentennial celebration at the Library of Congress in 2005, that Joseph Smith was a remarkable American, with wide ranging visions and goals for people all over the face of the earth. He was inspired by extraordinary means and insights that were magnetically attractive to many people who came in close contact with him, while others of an opposite pole were equally repulsed by that magnetism. Those diametrically opposed reactions, which came along with his prophetic calling—that his name “should be had for good and evil . . . among all people”—often played themselves out in the arenas of courtrooms, from his youth until the day he was murdered.
Joseph Smith was born a simple American farm boy in 1805 in a remote cabin in Vermont, but from this humble background, he would rise to become a national figure. Near the end of his life, in 1844, he announced his campaign for the presidency of the United States. His frequent contacts with judges, legislators, governors, and even President Martin Van Buren gave him firsthand experiences with the strengths and weaknesses of the legal and political processes of his day. While he may not have had a serious chance of winning the 1844 national election, he ran shrewdly as a third-party candidate who was definitely serious about encouraging legal reforms in the United States. He hoped and worked to improve public opinions on momentous issues including slavery, religious freedom, prisons, and public lands. He and Robert F. Kennedy remain the only two Americans to be assassinated while they were candidates for the office of United States president. Long after visiting Nauvoo and Joseph Smith in mid-May, 1844, Josiah Quincy, who was the son of a president of Harvard University and later mayor of Boston, wondered out loud, “What historical American of the nineteenth century has exerted the most powerful influence upon the destinies of his countrymen?” The answer, he allowed, may well be: “Joseph Smith, the Mormon prophet.”
Though not trained in the law, Joseph Smith impressed people of other faiths as having naturally a keen legal mind. He associated with many lawyers and judges, some of them being the best and brightest in his day. He was readily attracted to good legal talent. The appendix at the end of this volume (pp. 515–45) identifies, for the first time, over sixty lawyers and judges who were involved with Joseph Smith in one way or another, as his advocates, consultants, or adjudicators. He paid well for their services and worked closely with many of them. Joseph Smith consistently followed the law as carefully as he could. He sought and followed the advice of the best lawyers he could find. In response to Governor Ford’s letter on June 22, 1844, charging that actions of the Mormons had been an affront to the Constitution, Smith replied that whatever has been done “was done in accordance with the letter of the [Nauvoo] charter and Constitution as we confidently understood them, and that, too, with the ablest counsel; but if it be so that we have erred in this thing, let the Supreme Court correct the evil. We have never gone contrary to constitutional law, so far as we have been able to learn it. If lawyers have belied their profession to abuse us, the evil be upon their heads.”
It has always been known that Joseph Smith accomplished an absolutely amazing amount before he was murdered in Carthage, Illinois, in 1844. He translated and published the Book of Mormon in New York; organized the Church in New York, and then resettled it in Ohio, Missouri, and Illinois; founded cities, including Kirtland, Far West, and Nauvoo; called and trained hundreds of church leaders; studied Hebrew and the Bible; founded the Relief Society of Nauvoo; ran businesses, alone and with partners; developed real estate and built temples; wrote and published articles and editorials; had a large family and embraced a wide circle of friends; and served in several civic capacities, including commander-in-chief of a large legion of militia men, as well as the mayor and chief judge for the city of Nauvoo. He spoke regularly in weekly worship services, dedications, and at all-too-frequent funerals; he attracted tens of thousands of followers, prompting waves of converts to immigrate to the United States. On top of that, astonishingly, he was also party to or participant in at least 220 lawsuits. Some were minor matters, but many demanded and consumed great time and attention.
To fathom all of this, the long legal chronology at the back of this book (pp. 461–514) should be regularly consulted. It lists month by month, and often day by day, the incessant barrage of litigation and legal proceedings that Joseph Smith encountered throughout his lifetime. This one-of-a-kind chronicle is an important tool for understanding the contents of this book. For ease of reference, case names appear in bold type the first time they appear, and cross references are given to chapters which discuss particular entries. The chronology gives an overview of many legal matters, as well as many other activities and roles that Joseph cared for while simultaneously handling these legal matters. Seeing this legal web, which overlays everything else he was doing allows readers to know what else was going on at the same time as these terribly distracting legal troubles. For most mere mortals, enduring two or three lawsuits per lifetime is considered stressful enough. For Joseph Smith, all that stress was subsumed by his positive character and absolute commitment to the mission with which he had been repeatedly entrusted by his God.
Much of this legal complexity has only recently been found, organized, and analyzed. This book is an outgrowth of the widely acclaimed Joseph Smith Papers project, as all remote corners have been scoured to locate every possible document relating to Joseph Smith. As a result, thousands of pages of new materials have been catalogued and transcribed, with the possibility of discovering even more. From all of this new information, one may well imagine, much will be learned about Joseph Smith as a person, prophet, and citizen. Currently, three volumes in the Joseph Smith Papers Legal and Business Records series are underway, making this a burgeoning area of historical research.
As work on the legal papers of Joseph Smith has unfolded, a class has been offered at the J. Reuben Clark Law School at Brigham Young University on Joseph Smith and early nineteenth-century American law, taught by the three editors of this volume. Of course, a wide range of regularly published legal history textbooks and reference works are used in this class. In addition to those referred to in the footnotes in this book, readers may want to peruse the items on the accompanying list of useful books about law, culture, and politics in Joseph Smith’s era. For primary sources, including statutes and treatises from the early nineteenth century, numerous legal books are now available online. But in addition, a specialized set of readings about Joseph Smith’s legal experiences was needed for use in that course, and hence this collection originated.
This book is published with several audiences in mind: general readers, law students, lawyers, legal scholars and historians. It brings together a dozen of the best articles published on several of the main legal cases in which Smith was personally involved. Each chapter tells a fascinating story in which controlling legal documents have survived, allowing detailed comprehension and extensive analysis. For helping to bring this book together and making this publication possible, special recognition and appreciation go to Ross Boundy, Jennifer Hurlbut, Marny K. Parkin, Chase Walker, Kelly Schaeffer-Bullock, Malory Hatfield, Sarah Hampton, the Joseph Smith Papers Project, the Mormon Historic Sites Foundation, and the J. Reuben Clark Law School and its Law Society.
In addition to the substantive appendices, published here for the first time are the four new chapters on Joseph Smith and the Constitution, the formation and legal aftermath of the Kirtland Safety Society, the results of litigation on the Kirtland economy, and the legal definition of adultery under Illinois and Nauvoo law. Eleven of the other chapters have been published in BYU Studies, while two have appeared in the Journal of Mormon History, one in Mormon Historical Studies, and one in the Utah Law Review, with a first printing of another having appeared in the Brigham Young University Law Review, as indicated at the end of each chapter respectively. To make this material as conveniently understandable as possible, each of these articles has been shortened, substantively updated, edited, and illustrated, while nonessential footnotes have been trimmed and sidebar texts of primary sources added. The more fully documented versions of these articles can be found in their original publications. To reflect these significant changes, the titles of these articles have all been adjusted.
By now it should be obvious that the study of Joseph Smith and the law is as fascinating as it is complicated. This book aims to make the task of understanding this material a bit simpler. Here are some key points to keep in mind while reading this book.
First, it is important to understand that the law in early nineteenth-century America was markedly different from the present. Going into that world is almost like traveling to a foreign country. One might anticipate that the nineteenth-century American legal and judicial system was different from the American system today, but the degree of that difference will probably come to most readers as a shock. Juries reigned almost supreme and in all kinds of cases. Lawyers did not go to law schools—which did not exist—and they could wear many hats, which professionals today would consider conflicts of interest. Promissory notes were circulated instead of currency, which was hard to find in frontier economies—paper money was not issued by the United States until the 1860s. Even the legal vocabulary was much different in those days than it is today (hence the glossary at the end of this volume).
More substantively, it may come as a surprise to many readers that during Joseph Smith’s time, the Bill of Rights (the first ten amendments to the Constitution) was not binding on the states, only on the federal government. As such, the establishment clause of the First Amendment and the due process clause in the Fifth Amendment—which prohibits state and local governments from depriving persons of life, liberty, or property without meeting certain fairness requirements—did not apply to actions of the individual states. Further, the Fourteenth Amendment had not yet been added to the U.S. Constitution, and thus, the equal protection clause, which requires each state to provide equal protection of law to all people within its jurisdiction, was merely a political ideal in Smith’s day, not the law of the land.
In addition, the court system itself was also much different than it is today. Typically, cases were filed either in a justice court or in a court of common pleas, depending on their nature. For example, in New York, cases in a justice court were heard by a single justice of the peace. Such justices were not required at all to have been trained in law and were elected by citizens of the district. Appeals from the justice courts were heard in courts of common pleas, presided over by three justices, all of whom were required to be trained in the law. Litigants had the option of appealing a case to an even higher judicial level, if a justice made a decision they believed was unfair. Joseph either lodged an appeal, or threatened to appeal, in many instances, but judges were not always available, since most courts were only in session certain months of the year and the higher judges often traveled on a circuit covering several counties.
It is important to realize that Smith’s legal experiences arose in many jurisdictions—New York, Pennsylvania, Ohio, Missouri, Iowa, and Illinois, as well as federal—and that each had its own system and types of laws. Few laws operated uniformly from state to state, making it hard to generalize about what the law was in those days. As Smith moved from one state to another, he may well have expected the laws that he had known in the previous jurisdiction to apply to his situation in the new jurisdiction.
Did he obey the law? The first step in objectively answering that question must be to determine what the law was in those days. Was it against New York law to use a seer stone as an instrument in dictating the text of a book? Was it unlawful under Ohio law for a religious leader who was not ordained as a Protestant minister to perform marriages within his religious community? How was treason defined under Missouri or United States law? What was the normal procedure in the 1830s for invoking the writ of habeas corpus to resist arrest, imprisonment, and the deprivation of liberty? What evidentiary and procedural standards should apply in a constitutional case of first impression when the governor of Missouri demands that the governor of Illinois extradite a citizen of Illinois back to stand trial in Missouri? Was it objectionable under federal or state constitutional law for a legally constituted commander to mobilize militiamen in a well-regulated fashion to protect the streets of Nauvoo from conspiring mobs that were threatening to move into the city? Was it unusual, let alone illegal, for a duly elected city council to determine that a newspaper was a public nuisance and authorize the city police to abate that nuisance? Was it criminal under Illinois law in the early 1840s for a person to commit adultery if that conduct was kept private and was neither open nor notorious?
Answering such questions is not easy today. It was not easy even in those days, for law in the early nineteenth century was undergoing seismic transformations, and the law of the time was often uncertain and continuously developing, especially as settlers broke ground across the central parts of the United States. By Joseph Smith’s day, the disestablishment movement held sway, separating church matters and state affairs, and power was being shifted in many regards from church congregations to state and local governments; but that transition was still far from complete, and variations existed from state to state in such matters as the enforcement of Sabbath laws, sexual mores, marriage, divorce, women’s rights, and the meaning of free speech and the free exercise of religion. The transformation from English common law to state statutory laws was in process and was by no means settled. As the nation and American law was still moving into the industrial age, the laws of torts, crimes, treason, federalism, contracts, public nuisance, property, corporations, banking, women, and slavery were all in great transition. This time period provided creative frontiers for American law in nearly every field, and that transition fueled opportunities for change and progress of many kinds, but also created discrepancies, disagreements, and even led all too frequently to violence. Courts could do little to establish continuity in their judicial decisions, making legal opinions undependable and justice difficult to come by.
With his heavy involvement in the legal system, Smith quickly learned the rules of the game and legally used those rules to his full lawful advantage, striving to make full use of the new opportunities and protections afforded by the young nation’s laws. His legal choices and conduct make it clear that he was well informed about legal matters and that he took explicit steps to make every appropriate use allowed by the law, whether he was obtaining the copyright for the Book of Mormon under federal law, performing marriages under Ohio law, shaping Nauvoo city ordinances, invoking the full protections of religious freedom, making effective use of new laws that governed the sale of federal land, asserting his right of habeas corpus, demanding proper venue, or applying for coverage under the newly adopted federal bankruptcy law. In his spare time, he studied law books. He knew the precise wording of the Constitution and the specific language of state statutes. No doubt he was well aware of many current legal developments at state and federal levels throughout his lifetime.
Further complicating the picture, Joseph appears in these cases in various social and political roles as well as church and fiduciary positions. While some of the cases revolved around religious issues, the majority did not. Joseph appeared in disputes involving business, property, municipal, martial, and constitutional law. While Joseph Smith usually found himself on the defensive, he was occasionally a plaintiff, witness, and judge. Though he often suffered legal wrongs, he usually chose not to take them to court. For example, he was tarred and feathered in Ohio and subjected to libel and slander in Illinois but did not seek judicial vindication. When he sued or petitioned for redress, he typically was concerned more with justice and protection for his people, rather than himself.
As a defendant, he was never convicted of any criminal offense. Whenever he was given a fair hearing, he was found to be an upstanding and honest citizen. Of his involvement with legal prosecutions, Brigham Young—who knew Joseph as well as anyone—testified in 1852, “Joseph Smith was not killed because he was deserving of it, nor because he was a wicked man; but because he was a virtuous man. I know that to be so, as well as I know that the sun now shines . . . I know for myself that Joseph Smith was the subject of forty-eight law-suits, and the most of them I witnessed with my own eyes; but not one action could ever be made to bear against him. No law or constitutional right did he ever violate. He was innocent and virtuous; he kept the law of his country and lived above it; . . . He was pure, just and holy, as to the keeping of the law. Now this I state for the satisfaction of those who do not know our history.”
In civil courts, judgments were often entered in favor of creditors against him and his partners, but often these obligations were not even contested and were simply being entered into the public record as a regular step in the ordinary debt collection process of that day. As far as one can tell, Joseph eventually paid his debts virtually in full, even when they were enormous, as was the case in the collapse of the ill-starred Kirtland Safety Society.
Even though Joseph consistently lived within the boundaries of the law, he lost much due to the unevenness of frontier opinions that sometimes prevailed in court. He was constantly distracted by lawsuits brought against him and suffered both physically and financially. He was held in state custody several times, sometimes under the watch of cruel and designing captors. He was denied bankruptcy claims while all others were approved, and he suffered many other financial blows from legal fees, demands for bail, and judgments, due to the lawsuits filed against him.
The law students who have used previous iterations of this book as their textbook have consistently come to the opinion that Joseph was responsible, accountable, loyal, prudent, merciful, cautious, meticulous, law-abiding, patient, positive, resourceful, astute, savvy, a good judge of character, and even legally brilliant (to use some of their own words), especially when it came to protecting the religious and civil rights of others or carrying out the duties with which he had been entrusted. He did not always win in civil actions regarding debt collection, and the rule of law sometimes worked for him, while other times it failed utterly. But Joseph Smith never lost faith in the Constitution and strived to work solidly under its aegis, even though he was often frustrated, disappointed, and wary of people administering it.
Occasionally, he pushed the envelope, finding himself on the cutting edge or testing the technical limits of the often unsettled law, but this is hardly surprising for a man who was breaking new ground theologically and politically, frequently taking issue with the dominant culture, and trying to move quickly to meet the urgently pressing needs of his devoted circle of friends and followers who were so vulnerable and depended upon him so hopefully. Consequently, he understood that there were different sides to legal arguments, and he did not shy away from debating legal issues with the best legal minds around him.
Overall, Joseph Smith’ involvement with the law of early nineteenth-century America impacted his life to a significant extent—much more than historians have typically recognized. Many biographical works have been produced about Joseph Smith, but those works have mostly focused on his personality, psyche, or religious and social achievements. Recognizing all the new information that legal developments have only recently brought to the table, one biographer lamented that old conclusions needed to be reconsidered and much of his book needed to be rewritten. For example, people have typically acquiesced that Joseph Smith was guilty of the crime of being a disorderly person in New York, that he illegally performed marriages in Ohio, that he was financially irresponsible in Kirtland, that provisions in his Nauvoo Charter were illegal, that he abused the right of habeas corpus in Illinois, that he did not discharge his financial duties as guardian, that he was properly charged with treason in Missouri and Illinois, and that he violated the Constitution when the Nauvoo Expositor press was destroyed. Readers may now read the primary documents behind such legal issues and see for themselves what the facts in these cases were, and how it might change some such conclusions, as they come to understand how the laws of the time applied to those situations, and what actually happened or legally should have happened in each of these cases.
This book does not begin to tell the entire story of Joseph Smith’s legal history, but it is a step in that direction. This study is a still work in progress. Further research is ongoing about the application of early American law to the many lawsuits, legal transactions, and legal responsibilities that colored Joseph Smith’s daily life. As there are many more cases to consider, a sequel volume is already taking shape. We regret any mistakes of fact or errors of law which may have occurred in spite of our best efforts. We will gladly correct those defects in subsequent printings of this material, especially as we continue to move toward the publication of the legal volumes in the Joseph Smith Papers. But as things stand at the moment, this book is an engaging point of departure for all readers interested in understanding the laws behind Joseph Smith’s many encounters with the law.
Readings on Law, Culture, and Politics in Joseph Smith’s Era
Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press, 1992.
Banner, Stuart. Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750–1860. Norman, Okla.: University of Oklahoma Press, 2000.
Bushman, Richard L. The Refinement of America. New York: Vintage Books, 1993.
Friedman, Lawrence. A History of American Law. New York: Simon and Schuster, 2006.
Grossberg, Michael, and Christopher Tomlins, eds. The Cambridge History of Law in America. 3 vols. New York: Cambridge University Press, 2007.
Hall, Kermit L., Paul Finkelman, and James W. Ely Jr. American Legal History: Cases and Materials. 4th ed. New York: Oxford University Press, 2011.
Hall, Kermit L., and Peter Karsten. The Magic Mirror: Law in American History. 2d ed. New York: Oxford University Press, 2009.
Hoeflich, Michael H., ed. Sources of the History of the American Law of Lawyering. Clark, N.J.: Lawbook Exchange, 2007.
Holmes, David L. The Faiths of the Founding Fathers. New York: Oxford, 2006.
Horwitz, Morton J. The Transformation of American Law, 1780–1860. New York: Oxford University Press, 1992.
Hutson, James H. Forgotten Features of the Founding. Lanham, Md.: Lexington Books, 2003. And Church and State in America: The First Two Centuries. Cambridge: Cambridge University Press, 2008.
Howe, Daniel Walker. What Hath God Wrought: The Transformation of America, 1815–1848. New York: Oxford University Press, 2007.
Lambert, Frank. The Founding Fathers and the Place of Religion in America. Princeton, N.J.: Princeton University Press, 2003.
Morison, Samuel Eliot, Henry Steele Commager, and William E. Leuchtenburg, A Concise History of the American Republic. New York: Oxford University Press, 1977.
Lutz, Donald, The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.
Noll, Mark A., and Luke E. Harlow, eds. Religion and American Politics: From the Colonial Period to the Present. 2d ed. New York: Oxford University Press, 2007.
Novak, Michael, On Two Wings: Humble Faith and Common Sense at the American Founding. San Francisco: Encounter Books, 2002.
Presser, Stephen B., and Jamil S. Zainaldin. Law and Jurisprudence in American History: Cases and Materials. 8th ed. St. Paul, Minn.: West, 2013.
Urofsky, Melvin I., and Paul Finkelman, eds. Documents of American Constitutional and Legal History. 3d ed. 2 vols. New York: Oxford University Press, 2008.
Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969. And Empire of Liberty: A History of the Early Republic, 1789–1815. New York: Oxford University Press, 2009.
Zunz, Oliver, and Alan S. Kahan. The Tocqueville Reader: A Life in Letters and Politics. Malden, Mass.: Blackwell, 2002.
