The interest in “Sustaining the Law: Joseph Smith’s Legal Encounters,” edited by Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch, BYU Studies, 2014, depends on the depth and breadth of your interest in Mormon history.
Some will find this volume of 18 essays — that includes a list of all legal events Smith was involved — dry and just plain boring. Others will delve into the minutia until the wee hours of the morning. I fall somewhere in the middle but give the collection a thumbs up.
The essays provide by-the-numbers appraisals of various legal matters and explore the strengths, and weaknesses, Smith possessed in cases.
The essays, most of which have been published before, are a diverse collection, which include Smith’s witness participation in a routine lawsuit over the sale of horses, to a “disorderly person” charge against Smith, the Book of Mormon copyright, the failure of the Kirtland Safety Society, habeus corpus law, a charge of adultery against Smith in Nauvoo, and the destruction of the Nauvoo Expositor newspaper, an act that led to Smith and his brother Hyrum being murdered by a mob. Although the book is favorable to Smith’s religious beliefs (at times the essayists precede his name with “the prophet...”) the legal issues are analyzed — appropriately — from secular perspectives.
In what may be the collection’s biggest strength, the legal issues of the cases are placed in the context of the times they occurred. This is an important distinction, because it allows for legal conclusions that may surprise us today. In the essay, “Legally Suppressing the Nauvoo Expositor in 1844,” by church apostle Dallin H. Oaks and first published almost 50 years ago, he makes a detailed case that the destruction of the press was more or less legal in that time period. Oaks points out that it wasn’t until 1931 that the U.S. Supreme Court reverses a Minnesota court ruling that actions such as the suppression of media by local authorities was unconstitutional. In the 1840s, it was not uncommon for local authorities to take action against entities which were defined as “public nuisances” without judicial approval.
In fact, prior to Joseph and Hyrum Smith being taken to Carthage — with a promise of safety by the governor — and subsequently being murdered, Smith had been acquitted by a non-Mormon judge in regards to the press’ destruction. The pair were unable to be bailed in Carthage only because a charge of “treason” was added. According to Oaks, the only legal blot against Smith in the Expositor case would be the destruction of the press, which would be considered “overkill” as the printed newspaper, and not the printing machine, was the “nuisance.”
Despite the legal introspection, it’s clear that the arbitrary destruction of the press by Nauvoo authorities was a deadly mistake by Smith and other Mormon leaders. Besides the outrage generated by suppressing the press, it provided the means necessary for enemies to get the Smith brothers into a jail, with a feckless governor’s sanction, and eventually murder the pair.
Some of the more interesting essays are “Being Acquitted of a ”Disorderly Person“ charge in 1826,” by Madsen, which argues that Smith was acquitted of charges that were likely related to “glass looking” or claiming to see through a stone. While the subject can be dry, essayist Nathaniel Hinckley Wasdworth in “Securing the Book of Mormon Copyright in 1829” makes the interesting observation that Smith, although obtaining a legal victory that denied a publisher the right to serialize the Book of Mormon, probably didn’t have sufficient copyright claim to win the case. Two essays, “Kirtland Safety Society,” and “Defining Adultery” take charges associated with Smith involving accusations of banking fraud and immorality. In both essays, arguments in favor of Smith’s legal positions rely on what the law’s intentions were in that time period, rather than relying on general disapproval. Another essay by Madsen points out bench mistakes and failures in a court presided by anti-Mormon Austin King that preceded a long jail stretch for Smith and others, including Parley P. Pratt, in Missouri.
In “Defining Adultery,” discussing adultery charges brought against Smith regarding Maria Lawrence, by apostates William and Wilson Law, essayist M. Scott Bradshaw notes that “under Illinois law, enacted in 1833, only open cohabitation of a man and woman not married to each other was punishable by law.” As Bradshaw adds, “Joseph’s relationships with his plural wives did not meet this definition (open).”
Besides the chronology of cases at the end of the book, there are short biographies of judges associated with cases and a glossary of legal terms. As mentioned, the chief strength of “Sustaining the Law ...” is its dispassionate look at the legal realities of the cases examined and its reliance on secular arguments — standard to the era — to overview the cases. The essays argue the law, not doctrine.
-- Doug Gibson
This post was originally published at StandardNet.
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