Power from on High
by Gregory A. Prince

Chapter 7.
Judicial Systems

[p.193]A judicial system which relies on the judgment of God would be inherently fair, since an omniscient judge would not condemn falsely. The Book of Mormon endorsed the idea: “Now it is better that a man should be judged of God than of man, for the judgments of God are always just, but the judgments of man are not always just.”1

The earliest instance of punitive action in the Restoration derived from Martin Harris’s loss of the original Book of Mormon manuscript. Because Joseph Smith had defied divine counsel in lending the manuscript to Harris, it was he who was the subject of censure, delivered via revelation:

Behold thou art Joseph, and thou was chosen to do the work of the Lord, but because of transgression, if thou art not aware thou wilt fall, but remember God is merciful: Therefore, repent of that which thou hast done, and he will only cause thee to be afflicted for a season …

And this is the reason that thou hast lost thy privileges for a season.2

The disadvantage of relying on God or God’s prophet for judicial verdicts is it appears to function best in small groups. Both the Book of Mormon and early documents of the Restoration describe the transition to a human-based judicial system as the movements grew. [p.194]For example, the same passage which extolled the virtues of God’s judgment went on to describe the appointment of “judges to rule over them, or to judge them according to the law” (BM, LDS, Mosiah 29:41). A later passage in the Book of Mormon described the details of the judicial system which served as a model for the earliest tribunal in the Restoration:

And they were strict to observe that there should be no iniquity among them; and whoso was found to commit iniquity, and three witnesses of the church did condemn them before the elders, and if they repented not, and confessed not, their names were blotted out, and they were not numbered among the people of Christ. But as oft as they repented and sought forgiveness, with real intent, they were forgiven (BM, LDS, Moro. 6:7-8).

Shortly after the church was organized, a conference was held at which the “Articles and Covenants” was read. Although a preventive role was assigned to teachers,3 and expulsion of sinners from the church was mentioned, no details of judicial tribunals were given aside from an admonition that transgressors “shall be dealt with according as the scriptures direct.”4 A revelation in February 1831 outlined a more concrete judicial system. Tribunals were to consist of “two elders of the church or more,”5 similar to the injunction of the Book of Mormon. However, the newly-created office of bishop was also attached to the tribunal. Its role was not specified, and the wording of this part of the revelation is awkward: “And if it can be, it is necessary that the bishop is present also.”

The sin of murder was separated from those of adultery, robbing, stealing, and lying. The former could be tried only by a civil court, whereas the latter fell under the jurisdiction of a church tribunal. At least two witnesses, “of the church, and not of the world,” were required. For settling disputes among members, a separate set of rules applied. Two steps were required prior to submitting the matter to the elders. First, “thou shalt take him between him and thee alone; and if he confess, thou shalt be reconciled.” That failing, “thou shalt take [p.195]another with thee.” If the dispute could not then be resolved through arbitration, “thou shalt deliver him up unto the church, not to the members but to the elders.”

A revelation two weeks later reversed the order of elders and bishops and signalled a trend towards bishops becoming the primary judicial officers in the church: “And unto the bishop of the church, and unto such as God shall appoint and ordain to watch over the church, and to be elders unto the church, are to have it given unto them to discern all those gifts, lest there shall be any among you professing and yet be not of God” (BC XLIX:23, 8 Mar. 1831).

The priority of bishop in the judicial system was confirmed by a revelation in August 1831: “And whoso standeth in this mission [bishop], is appointed to be a judge in Israel, like as it was in ancient days, to divide the lands of the heritage of God unto his children; and to judge his people by the testimony of the just” (BC LIX:21, 1 Aug. 1831).

The shift away from a Book of Mormon model, in which elders served as judges, was concurrent with the addition of the first offices deriving from a biblical, rather than Book of Mormon precedent. The judicial role of bishop represented a curious chimera of Old Testament and New Testament interpretation, for the office of bishop is confined to the New Testament, while the role of “judge in Israel” comes from the Old Testament.

Another passage in this revelation emphasized the principle underlying most proceedings during Smith’s ministry, namely that the attitude of the sinner was more important than the nature of the sin. Referring to an unspecified sin of Ziba Peterson, the revelation stated: “Let that which has been bestowed upon Ziba, be taken from him: And let him stand as a member in the church, and labor with his own hands, with the brethren, until he is sufficiently chastened for all his sins, for he confesseth them not, and he thinketh to hide them” (BC LIX:74-75). In other words, it was Peterson’s intractability, not the sin itself, which brought condemnation. Three days later, in a special conference, Peterson finally confessed, “which was satisfactory to the Church as approved by unanimous vote.”6

[p.196]Although all church members were subject to discipline, leaders gradually gained a favored status. For example, charges were brought against Smith in October 1831, alleging mismanagement of a church farm. After a conference of elders decided that he be reproved for “the unwise course” he had taken,7 a revelation the following month, “regulating the Presidency of the Church,” changed the rules: “Inasmuch as the President of the high priesthood [i.e., Joseph Smith] shall transgress he shall be had in remembrance before the common court of the church who shall be assisted by twelve councellors of the high priesthood.”8

Another revelation, given simultaneously, provided similar insulation to the office of bishop: “No bishop or judge, which shall be set apart for this ministry, shall be tried or condemned for any crime, save it be before a conference of high priests; and in as much as he is found guilty before a conference of high priests, by testimony that cannot be impeached, he shall be condemned or forgiven, according to the laws of the church.”9

The introduction of the office of high priest in the autumn of 1831, and the revelation specifying a council of “high priests even twelve,” set the stage for the most important judiciary of the church: the high council. Although the first high council was not formally organized until 1834, the number and nature of its constituents and its jurisdiction were determined by the 1831 revelation. Bishops were to judge simple cases, but complex issues and appeals were to go to the council of twelve high priests:

And again verily I say unto you the most important business of [p.197]the church and the most difficult cases of the church inasmuch as there is not satisfaction [upon the] decision of the judges [i.e., bishops] it shall be handed over and carried up unto the court of the church before the President of the high Priesthood and the President of the court of the high priesthood shall have power to call other high priests even twelve to assist as councellors and thus the president of the high priesthood and his councellors shall have power to decide upon testimony according to the laws of the church and after the decision it shall be had in remembrance no more before the Lord for this is the highest court of the church of God and a final decision upon controversies.10

Courts of high priests functioned periodically between 1831 and 1834, always composed of men called to serve on an ad hoc basis. On 17 February 1834 the first high council was organized in Kirtland, its composition and function dictated by revelation.11 It was to consist of twelve high priests permanently called to serve on the council. In the event one or more members were absent, members pro tem could be chosen by the permanent members, a minimum of seven of whom were required to be present for the council to function. Either two, four, or six members of the council would speak on each case, the number being determined by the complexity of the case. Half the designated members would speak in behalf of the defendant, the remainder in behalf of the plaintiff. After hearing all testimony, the president of the council, who was not one of the twelve members, would render a decision. Upon hearing his decision, council members who had not previously spoken on the case could “throw any farther light upon the subject, so as to correct the decission of the president,” after which the council would by majority vote confirm or overturn the decision. In difficult cases “respecting doctrine, or principle, if there is not a sufficiency written to make the case clear to the mind of the council, the president may inquire and obtain the mind of the Lord by revelation.”

Two types of formal judicial bodies remained intact following the formation of high councils: the bishop’s council and the “council of high priests abroad.” The former was a standing body to act in routine [p.198]cases, while the latter was “only to be called on [for] the most difficult cases of church matters; and no common or ordinary case is to be sufficient to call such councils.” Cases from either venue could be appealed to the high council.

One additional, informal mechanism existed for judicial action under unusual circumstances. “When there is no Bishop,” wrote Smith in 1833, “they are to be tried by the voice of the Church.”12 The following year Smith explained that such a tribunal did not necessarily require ordained officers: “even if there is not another ordained member in the church, let the church appoint some brother to preside and let them do as one church did in ancient days [and] try them who say they are apostles and are not, but are liars,” then let them demand their license, raise their hands against them and thus they are expelled from the communion of the church.”13

With a single exception, the judicial system of the church underwent no significant changes from 1834 when the Kirtland high council was organized through Smith’s death in 1844. That exception, occurring in 1838, involved Smith and other members of the presidency of the church.

The collapse of the Kirtland Bank, which had been chartered under Smith’s direction, happened in late 1837 and precipitated a crisis. Many apostatized, while others sought vengeance of Smith, whom they blamed for the disaster. On the night of his covert departure from Kirtland, Smith received a revelation which complicated the procedure for removing a member of the First Presidency. The 1831 revelation “regulating the Presidency of the Church” had allowed for removal of the president upon the consent of a court “assisted by twelve councellors of the high priesthood”14—a body which later became the high council. Despite the growth of the church, and the formation of other stakes and high councils, the 1831 revelation could still be interpreted to mean that Smith could be removed by action of a single high council. Indeed, the text of the revelation was preceded by the query, “Whether the descision of Such an Council of one Stake shall [p.199]be conclusive for Zion and all her Stakes.”15 The new revelation, favorable to Smith’s continuing tenure, indicated that a decision by a single high council would not be binding on the entire church, and that “except a majority is had by the voice of the Church of Zion and a majority of all her Stakes, the charges will be considered not Sustained.”
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Notes:

1. Mosiah 29:12, in The Book of Mormon (Salt Lake City: Church of Jesus Christ of Latter-day Saints, 1981) (hereafter cited as BM, LDS).

2. A Book of Commandments, for the Government of the Church of Christ, Organized According to Law, on the 6th of April, 1830 (Independence, MO: W. W. Phelps & Co., 1833), III:4-5 (July 1828); hereafter cited in the text as BC.

3. Painesville Telegraph, 19 Apr. 1831.

4. Ibid.

5. “Items of Law for the Government of the Church of Christ,” 23 Feb. 1831. This was published the following year in Evening and Morning Star 1 (Oct. 1832): 34, and later in BC XLIV.

6. Donald Q. Cannon and Lyndon W. Cook, eds., Far West Record: Minutes of the Church of Jesus Christ of Latter-day Saints, 1830-

7. Ibid., 10 Oct. 1831.

8. “Revelation given November 1831 Cuyahoga Co. Ohio regulating the Presidency of the Church,” in “Kirtland Revelation Book,” 84-86, archives, Historical Department, Church of Jesus Christ of Latter-day Saints, Salt Lake City, Utah (hereafter LDS archives).  This revelation was combined with another from 1835 to Doctrine and Covenants of The Church of the Latter Day Saints:  Carefully Selected from the Revelations of God (Kirtland, OH:  F. G. Williams & Co., 1835), III; hereafter cited in the text as DC, 1835.

9. Evening and Morning Star 1 (Oct. 1832): 35; also DC, 1835 XXII:3. A further layer of insulation was added in the 1835 revision of this revelation, which required that bishops be tried before the First Presidency.

10. “Revelation … regulating the Presidency.”

11. “Kirtland Revelation Book,” 111-15; also DC, 1835 V. No analogous rules were indicated, during Smith’s lifetime, for the functioning of bishops’ courts.

12. Joseph Smith to Brother Carter, 13 Apr. 1833; B. H. Roberts, ed., History of the Church of Jesus Christ of Latter-day Saints, Century I (Salt Lake City: Deseret Book Co., 1971), 1:338-39.

13. Joseph Smith to J. G. Fosdick, 3 Feb. 1834, Oliver Cowdery letterbook, 23-24, Huntington Library, San Marino, California.

14. “Kirtland Revelation Book,” 84-86.

15. “Revelation Given at the French Farm in Kirtland, Geauga Co., Ohio. In the presence of J. Smith Jr., S. Rigdon V. Knight & Geo. Robinson January 12th 1838.” This revelation, not published during Smith’s lifetime, was recorded in “The Scriptory Book of Joseph Smith,” 51-53, and is published in Lyndon W. Cook, The Revelations of the Prophet Joseph Smith (Provo, UT: Seventy’s Mission Bookstore, 1981), 328-29.