Random Thoughts on the Nature of 19th-century Mormon Theocracy

What follows is a summary of some of my research notes. I have been reading Puritan legal history of late, looking for ideas and ways of thinking about Mormon legal history. The literature on Mormon legal history is tiny; you can basically get it all on a single book shelf and still have room left over for Cobin on Contracts. The literature on Puritan legal history, on the other hand, is enormous.

Of course, in some sense it is passe to even speak of “Puritanism” any more. Back in the 1930s, Perry Miller published a fabulous book called “The New England Mind,” but these days no one seems to believe in Puritan thought any more, just lots of loosely connected Puritan thoughts. Nevertheless, there are some key features.

The earliest Puritan settlers wanted to create a commonwealth in which the law of god would reign supreme. Functionally, what this meant is that they didn’t actually create much in the way of substantive law. Interestingly, however, this didn’t mean that they created theocratic institutions. Indeed, most Puritans were pretty fanatical about separating the roles of minister and magistrate, and it was clearly the magistrates that were to be in control of the law. (Which is not to deny that ministers had a great deal of influence.) Rather, Puritan legal institutions were adapted from the charter of the Massachusetts Bay Corporation, which was essentially the articles of incorporation for a business enterprise. In other words, they used non-theocratic institutions for theocratic ends by giving those committed to a theocratic ideology control. Rather than promulgating religious legal codes, the earlies Puritans simply gave godly magistrates the authority to govern as they saw fit in light of God’s word contained in the Bible.

Unlike the Puritans, the Mormons had some substantive criminal law from the get go. As near as I have been able to find out the legal genealogy goes something like this: the Nauvoo City Council passed criminal laws. Modified versions of these laws were then re-promulgated by the High Council in Winter Quarters. Upon arrival in the Great Basin, the High Council of Great Salt Lake City re-promulgated modified versions of the Winter Quarters’ criminal laws. Finally, the State of Deseret passed a criminal code that was then adopted by the Territorial legislature when Congress finally got around to creating Utah Territory. Interestingly, these laws seemed to lack a great deal of explicit religious content. Unlike the Puritans, for example, Mormon criminal law does not seem to have been self-consciously modeled on biblical law. On the other hand, when it came to private law, the Mormons didn’t legislate. Indeed, private litigation was funnelled into ecclesiastical courts where the substantive rules applied (to the extent that there were substantive rules) had more explicitly scriptural models.

Unlike the Puritans, the Mormons had a mix of theocratic and non-theocratic institutions. The Constitution of the State of Deseret was more or less copied from Illinois. Even the territorial probate courts, which some historians have tried to argue were a unique Mormon innovation (probate courts in Utah had very broad jurisdictions, including criminal jurisdiction) were copied from other territories. The ploy of expanding probate jurisdiction as a way of placing more adjudication under local control (rather than under federal appointees) was used by lots of territorial legislatures. On the other hand, the Mormons did have powerful theocratic institutions that performed some legal functions. The most prominent of these were the various high councils. Both the high council in Winter Quarters and the high council in Salt Lake exercised complete criminal jurisdiction for a time. Through out the territorial period and before, high councils had virtually unlimited civil jurisdiction. Furthermore, Mormon activity within the context of non-theocratic institutions like the territorial legislature was mediated through theocratic institutions like the Council of Fifty or the (second) School of the Prophets that in effect acted as political caucuses and coordinating institutions under the control of the Church hierarchy.

Hence, the Mormon theocracy was both more and less theocratic than the Puritan theocracy. Both theocracies adapted non-theocratic institutions to religious ends by placing them in a theocratic political culture. In some ways, the substantive law of the (early) Puritan theocracy was much more explicitly religious than the substantive law of the early Mormon theocracy. On the other hand, unlike the Puritans, the Mormons did develop some powerful theocratic institutions. (Although even here it ought to be noted that New England ministers frequently mediated civil disputes, which were sometimes — often? — resolved in ecclesiastical fora.) The Puritan contrast gives us a way of thinking about what the Mormons did that was unique and what had been done before.

12 comments for “Random Thoughts on the Nature of 19th-century Mormon Theocracy

  1. August 29, 2006 at 11:49 am

    Speaking of 19th Century Mormon Theocracies – they just arrested FLDS Leader Warren Jeffs outside Las Vegas.

    I expect to see Mormonism and Polygamy as a hot topic on a lot of non-LDS blogs today.

  2. MLU
    August 29, 2006 at 12:23 pm

    The aspect of Puritan thought that has interested me most–and seemed most similar to Mormon thought–is the way history is experienced. If there are patterns in history–so that the Old Testament prefigures the New Testament–then history is quite a different thing that one could guess from the study of modern scholars.

    Is the story of fleeing Egypt toward freedom and the promised land, relying on and receiving divine assistance, just an old story? Or does it reveal structural principles of reality?

  3. August 29, 2006 at 4:45 pm

    You mention the Council of Fifty in Utah, but what about the Nauvoo Council of Fifty. Granted it was short lived and didn’t particularly live up to its expectations in Utah, but is it not still legally significant to Mormonsim, at least from a hypothetical perspective?

    You also start with Nauvoo as the legal seed. This is an area I don’t particularly know much about, but what about Adom-ondi-ahman and Far West? What about the Kirtland Camp with its laws and constitution? Was it historically anomolous?

  4. Mark Butler
    August 29, 2006 at 6:12 pm

    I don’t see how the flight from Egypt could have much directly to do with structural reality, but rather very much to do with the will of God and his plans for the salvation of mankind. In other words, I do not think that there are any natural laws (laws independent of his will) so specific that they dictate the Lord’s timing in matters like these.

  5. Ardis
    August 29, 2006 at 8:29 pm

    Thanks, Nate. I had to stop at each point to think whether your explanation described specific events I’ve been studying, and it does. Your outline is very helpful to pull together some (for me) previously random principles.

    It’s also helpful to have you tie Mormon history and thought into a broader context. You may recognize the “donut” pattern of western history, where western historians write about the donut but ignore Utah as a special case, and Mormon historians write about the hole without examining the surroundings. Almost anything that looks at parallels and contrasts is new ground, and I find it exciting.

    I’m interested in knowing what territories you have found that broadened the responsibilities of probate courts similar to the way Utah did (off blog if you think it doesn’t belong here). By any chance, have you noticed other states and territories that used marked ballots as Utah did?

  6. Nate Oman
    August 29, 2006 at 9:29 pm

    Ardis: I don’t know about marked ballots, but public voting was the norm in the 19th century. The idea of anonymous voting began in Australia, and didn’t happen until the late 19th century. In other words, while some have tried to make hay with voting rules in Utah, I don’t think that there was anything unique there.

    I’ve got sources on the probate court issue in my office…

  7. Nate Oman
    August 29, 2006 at 11:10 pm

    J.: The answer to your questions is that I don’t know. I start with Nauvoo because I am studying the Utah period right now, and Nauvoo is the root of much of what happens in Utah.

  8. heironymus potter
    August 29, 2006 at 11:23 pm

    # 1 Sort of like terrorism and Islam. Its all about the sensational story. Mormons living normal mainstream lives, just doesn’t play. Muslims living normal mainstream lives, just doesn’t play. Go figure. Polygamists are labeled Mormons, and terrorists are labeled Muslims.

  9. MLU
    August 30, 2006 at 1:21 am

    Mark #4

    Well, if reality has a narrative structure, and if the Lord is the author of that structure, and if the scriptural stories are types to help us see the narrative structures of human history, both for peoples and for individuals. . .

    Sometimes we are between a howling army after our blood and a sea we cannot cross. If we continue onward, the sea may part, though probably none too early–otherwise, our faith isn’t tested. It’s part of the structure of the reality we inhabit, though it’s necessarily to think in metaphors to see it. The Puritans became quite sophisticated in thinking with types, stories, and metaphors, as have other Christian groups, including Mormons.

  10. MLU
    August 30, 2006 at 1:22 am

    Oops. I hope that turns off the italics.

  11. Mark Butler
    August 30, 2006 at 1:54 am

    MLU, The way I see it in a coherent theology one must distinguish between natural laws independent of the will of God, and divine laws, decrees, and ordinances that are a joint function of the will of God and natural law. I do not believe that God can violate a first class natural law (e.g. conservation of energy, or effort entails suffering) in any detail, nor a second class natural law (e.g. the natural laws of morality) in the large.

    Now I agree that it is the unique capacity of the Lord God of heaven to be able to make things become real, through his unique ability to fulfil all his words in the process of time. The types of things that become real, however, seem to be his promises, his covenants, his ordinances, his prophecies. I believe that he has to stretch forth his hand all the day long to bring those things to pass, and indeed to make sure his plan for the salvation of all mankind comes off without any serious problems (of the sort that would frustrate it).

    I am not quite sure, but it seems you are speaking as if the Lord could create a narrative and then set it free, able to self implement without direct and continuous intervention on the Lord’s part. I believe that the metaphors and allegories symbolize activities that are very real, but anything spiritually significant happening without the Lord’s suffering effort and intervention in every day and hour according to the working of the Holy Spirit I cannot comprehend.

    It is worth noting that the Lord told Moses that he would have power to command the seas long before the situation presented itself (cf. Moses 1:25). Sure the Lord could have arranged for the sea to part without Moses’ command, but it is his pattern to demonstrate his power and authority in the hands of those whom he has anointed (provided they walk uprightly before him, of course).

  12. MLU
    August 30, 2006 at 8:50 am

    I agree what is real is what the Lord has promised, and what we therefore can count on. That, of course, gives reality a narrative structure–it takes form from a character acting in time–the “direct and continuous intervention on the Lord’s part,” if you will.

    He gave us books of stories to help us understand where we were, how things happen, and what he would do. The stories are not simple, and do not yield their insights in a quick reading. Our understanding of them unfolds as we experience more He who is authoring them. . .

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