In 1847, the Mormon pioneers arrived in the Salt Lake Valley and set up a frankly theocratic government. The highest legal authority was the High Council, which had the right to promulgate laws, as well as to try and punish criminal offenses (usually with fines or public whippings). Just as one would expect from a fanatical theocratic despotism, the High Council spent most of its time legislating about cows.
Initially this was done by passing a law whereby all stray livestock was impounded and the owner of the strays was required to pay a fixed fine. The rule was enforced by either the High Council itself or else by a bishopâ€™s court. The initial rule, however, gave bishops very little flexibility in deciding cases, and the High Council ultimately decided that the fixed fine should be dropped in favor of a rule giving the bishops that right to decide each case â€œas justice requires.â€ The main effect of this seems to have been to reduce the fines paid for straying cattle.
This is the point in the story where it gets interesting. Hosea Stout records in his diary that when the High Council repealed the previous stray law, they made the decision not to publish the change, so as to still â€œget the benefit of the old law.â€ In other words, the High Council wanted people to think that they would be subject to big fines for straying cattle but didnâ€™t want to actually fine them when their cattle strayed.
The Emperor Nero is supposed to have posted new laws on the top of very high columns so that no one could see them. The Soviet Union used to promulgate secret laws that they would not tell people about. In both cases the secret statutes created much harsher punishments than the older ones. Nero did it because he wanted to confiscate the property of rich Senators, and the Bolsheviks did it because they were creating a secret police state. The injustice of these laws has led some legal philosophers, most notably Lon Fuller, to argue that publicity is a basic condition of legality. You can’t have the rule of law if you don’t know what the law is.
We Mormons, it would seem, also have had our secret laws, but in this case they were designed to be more lenient than the public ones. Hence the classic legal problem of powerful ex ante threats against misbehavior versus mercifcul ex post treatment of lapses was solved with benevolent deception on the part of the authorities. In the end, however, it doesn’t seem to have worked. Word that the Mormon theocrats were softies about straying cattle got out.
[UPDATE: To ease the pain of Russell and the other cattle pedants, I have switched the picture from a Utah-located Texas longhorn to an ordinary ox of unknown location. Are you happy now?!]