FAIR Staff

Book Review: Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch (eds.), Sustaining the Law: Joseph Smith’s Legal Encounters (Provo, UT: BYU Studies, 2014.)

By James W. McConkie II

Even seasoned Mormon history buffs may be surprised by the kinds of details about Joseph Smith’s encounters with the legal system of his day that are now available in this useful one-volume collection of essays on Joseph Smith and the law edited by Gordon Madsen, Jeffrey Walker and John Welch. For example, the total number of suits – from simple collection matters to more sophisticated civil and criminal cases – is about 220. Or this: We would expect that Joseph Smith was most often the defendant in these suits; but he was also occasionally the plaintiff, or a witness, and even a judge. And this: As far as historians know, despite the number, he was never convicted of any criminal offense. His attorneys used the Writ of Habeas Corpus artfully to keep Joseph out of jail and in the company of the Saints. And finally: Most would agree that his and the Nauvoo City Council’s involvement with the decision in 1844 to order the destruction of the Nauvoo Expositor – a newspaper critical of Joseph – led to his death. However, one of the essays argues that although the order and the act may have been ill advised, in the context of his times, it was defensible.

In Sustaining the Law: Joseph Smith’s Legal Encounters, the editors have pulled together 18 articles, all but four of which have been published elsewhere. They have simplified and shortened the works to make the book more accessible to the general reading public. Nevertheless, in many places, it often reads more like material from a legal textbook rather than a group of historical essays. Still, for those interested in Joseph Smith and Mormon history, the book is worth purchasing for the Appendix alone. In it the editors have organized a “Legal Chronology of Joseph Smith” that lists and briefly summarizes all of the known cases he was involved in. It also includes sections entitled “Lawyers and Judges in the Legal Cases of Joseph Smith” and a “Glossary of Early Nineteenth-Century Legal Terms” that explain some of the unique aspects of American law in the 19th Century. The book’s index is, however, curiously scant and not very helpful. In my judgment, the book’s value comes from its function as a starting point for amateur and professional historians who wish to explore the legal context of Joseph Smith’s trials and tribulations.

The book considers questions such as, was he really found guilty of being a disorderly person in New York? And, did he act financially irresponsibly when the Kirtland Bank failed? It takes up the legal implications of the Nauvoo Charter, what it means to be charged with treason in Missouri and Illinois in the early 19th Century, and whether or not Joseph and his brethren violated the U. S. Constitution when he ordered the Nauvoo Expositor press destroyed. No doubt the legal materials gathered together in this book and the ever-expanding Joseph Smith Papers project will add insights to the work of historians as well as give them and the more casual reader a more accurate understanding of Joseph’s legal problems.

The book’s weakness is suggested in the first part of its title, Sustaining the Law. That phrase announces the tone generally as well as the content of several arguments specifically that oversimplify Joseph Smith’s attitudes on “honoring, sustaining, and obeying the law.” I think the book would have been enhanced if someone the likes of Richard Bushman had been asked to write an essay on evidence that suggests how Joseph Smith resolved conflicts when the laws of God disagreed with the laws of the land. In a church with a long history of civil disobedience – issues swirling around Joseph Smith and the practice of plural marriage, for example – so many conflicts are at their roots based on that complicated relationship between civil and religious authority.

While no one would suggest that Joseph Smith did not have a strong commitment to obeying the laws of the land, that obligation was not an absolute one. In Section 98, one concerning the “laws of the land”, the Lord commanded that the Saints “should observe to do all things whatsoever I command them” and that only laws that are “constitutional, supporting that principle of freedom in maintaining rights and privileges … [are] justifiable before [God]. (D&C 98:3-4) Lest there be any misunderstanding, the Section says that any law that is “more or less than this cometh of evil.” (D&C 98:11) Therefore, it continues, “I [God] give you a commandment, that ye shall forsake all evil and cleave unto all good, that ye live by every word which proceedeth forth out of the mouth of God.” (D&C 98:11) In other words, there were justifiable limits to obedience when it came to supporting the laws of civil governments, especially in a situation where religious liberty was at stake.

Without question then, in situations where an important conflict arose on a question of man’s law or God’s law, Joseph would not have hesitated to choose obedience to God’s law. Nevertheless, the editors and contributors of Sustaining the Law turn to two other Church-approved statements to suggest otherwise: Doctrine and Covenants 134:5and Article of Faith 12. Section 134 states that “… all men are bound to sustain and uphold the respective government in which they reside”. Article of Faith 12 states that the Church believes in “honoring, and sustaining the law.” While these verses come from books in the LDS canon that described well the general and accepted rule for the membership, it must be remembered that both of these proclamations were written in the early life of the church in order to re-assure outsiders that the Mormons were no threat to their neighbors in fledgling Mormon gathering places in Ohio and Missouri. They, the members of the new church, would submit to the laws of the land and live peaceably in the community. However, a more careful consideration of this issue leads to the conclusion that Joseph Smith’s thinking was more in line with the Apostle Peter’s: “We ought to obey God rather than men.” (Acts 5:29)

The tendency of this book and some of its authors is that it/they go several steps too far in one direction in order to show that Joseph Smith was a “law abiding citizen”. Perhaps the best illustration of this claim is in M. Scott Bradshaw’s article, “Performing Legal Marriages in Ohio in 1835.” The word “legal” in the title is the give-away. In the paper, Bradshaw argues that Joseph and his associates were not in contravention of the 1824 Ohio Statute on Marriage when they performed marriages without the required valid license.

Bradshaw makes his case by relying on two sections of 1824 Ohio Statute on Marriage. He claims that Joseph Smith fit under an exception to the general rule articulated in Section 3 of the statute. The general rule stated that a “regularly ordained minister” was entitled to obtain a license to marry from a local court. Mormons had previously been turned down under that Section 3 rule. But Bradshaw’s argument, that Joseph lawfully performed marriages, relies on Section 2 of the statute, one that carved out an exception. It provided that it “shall be lawful” for an “ordained minister” of “any religion” to marry without having obtained a state license if the “rules and regulations of their respective churches” authorized it.

In my opinion, the courts would not have applied the Section 2 exception to the general rule. Here’s why: Bradshaw leaves out the critical fact that in 1803, when the statute was first enacted, this so-called Section 2 exception granting permission for some “ministers” to marry without a license was meant specifically and only for Quakers (“The Society of Friends”) and Mennonites, two faiths without regularly ordained clergy. The Ohio Legislature’s unstated reason for the exception was that officiators for Quaker and Mennonite marriages were not the same as ministers and/or priests in other denominations that had regularly ordained clergy. Therefore, without providing an exemption for those faiths, the statute would have made all the children born to devout Quakers and Mennonites illegitimate.

Although the language of the 1803 statute explaining the need for an exemption had been redacted by 1824, some eleven years before Joseph supposedly relied on the exemption in his situation, given the history of the statute and the intended exempted denominations, it is doubtful that it would have been interpreted broadly to apply to the laying-on-of-hands type of ordained (with certificates) Mormon priesthood bearers. That is to say, since a strict reading of the language granting the exception eviscerates the part of the statute prohibiting a minister from marrying without a license, the court would likely have read the exception to apply very narrowly to those originally intended as meriting special attention in light its legislative history. Mormon Priesthood simply did not qualify. Thus, I think Bradshaw mistakenly claims that Ohio’s marriage laws allowed Mormons to ignore the statute’s clearly stated requirement for regularly ordained ministers to obtain licenses to marry, when in actuality Ohio’s laws made such exemption for only those “religious societies” (like Quakers and Mennonites) that did not have regularly ordained ministers.

A second problem with Bradshaw’s argument involves another omission of the history. When Joseph Smith married Newel Knight and Lydia Bailey in November 1835, he (Joseph) admitted that he was not relying on the authority of the Marriage Statute when he told the couple, “The Lord God of Israel has given me authority to unite the people in the holy bonds of matrimony … and the enemies of the Church shall never have power of the law against me.” Bradshaw acknowledges this diary entry; but he argues that Joseph did not mean to say he married this couple contrary to law because he was relying on the Quaker/Mennonite exception.

Again, I think the interpretation of Joseph’s language is doubtful. Joseph made this bold and provocative declaration on his source of authority just nine months after Sidney Rigdon’s application for a license to perform marriages had been turned down in March 1835. And, just one month prior to the Knight/Bailey marriage, Rigdon had been prosecuted for marring a couple without a license. The only reason Rigdon had escaped conviction was that he had produced a license of the Court granted him several years earlier when he was a minister for the Campbellites. Under these circumstances, Joseph surely would have known that if he had applied for a license he would also have been turned down. Hence, Joseph’s statement on the source of his authority is more a statement of insubordination to state law.

Ultimately, Joseph Smith’s willingness to defy Ohio’s marriage license laws is evident in light of the fact he was secretly practicing polygamy at this time. Todd D. Compton and other well-known Mormon historians believe that in early 1833 Joseph married his first plural wife, Fanny Alger. In support, Compton cites Mosiah Hancock’s handwritten report of his father Levi’s account of the marriage ceremony of Smith and Alger. When Joseph Smith said, “The Lord God of Israel has given me authority … and the enemies of the Church shall never have power of the law against me,” he meant it.

It is for these reasons that Bradshaw is, in my mind, more a good defense lawyer – a better apologist for Joseph – than a careful historian evaluating all of the evidence. Nevertheless, Bradshaw’s brief is a valuable contribution because it made me, and undoubtedly others, wonder what might have happened had these matters been appealed or more fully adjudicated by an impartial court. Surely the Mormons qualified as “regularly ordained ministers” and should have been granted licenses to marry under Section 3 of the Ohio statute. Simple prejudice is the only plausible explanation for why the court did not issue a license for Sidney Rigdon to marry others.

This book’s look at the legal encounters of Joseph Smith demonstrates how the courts and legal system significantly impacted his life and the life of the Church. The law and court battles influenced everything from how the Saints were allowed to practice their communal living orders in Kirtland to where the Mormons lived. Ultimately the law played a pivotal role in the events leading up to the Prophet’s martyrdom. One cannot fully appreciate Joseph Smith without considering how he dealt with the unremitting legal barrage that complicated his life and the life of the Church. This book not only opens the door to a better understanding of our history but also gives us a better appreciation for how the Prophet dealt with and endured the travails of the legal system.