Gordon Madsen and Jeffrey Walker are leading a team preparing the Legal and Business Series of the Joseph Smith Papers Project. Both are attorneys as well as Church history and legal scholars who are part-time instructors at the J. Reuben Clark Law School at BYU.
"Part of the scope of our series is to look at all the legal cases that Joseph was involved in, either as a plaintiff, defendant, material witness or judge, as he wore all those hats," Walker explained."Brigham Young is often quoted that Joseph was involved in some 50 court cases," he noted. Brigham Young reported that he was present for most of them and that Joseph Smith was never convicted of any charges.
While that is a fair estimate of the number of criminal cases involving the Prophet, "in terms of the total litigation that Joseph was involved in, we've identified more than 220 cases," Madsen said. "We still don't know how many are still out there. It's a far broader expanse of raw material than we had originally expected."
Moreover, there are lobbying efforts to be considered, incorporation of the Church, for example, and petitions to the state and federal government for redress of wrongs suffered in Missouri. "And then, finally, he was a judge for a period as the mayor of Nauvoo city, where he presided over trials, and by virtue of being lieutenant-general in command of the Nauvoo Legion, presided over courts-martial in the legion.""It's interesting," added Walker, "that this is an area that Joseph Smith was so involved in, but that we've made so little concerted effort to understand it, to put it in context with other events, with the revelations he received, correspondence he had and the journals he kept. Our goal is to interlace all those experiences with his legal world, his involvement with the courts, in business and in government."
Both scholars marveled at Joseph Smith's to bear up under the pressure of legal cases with all his other responsibilities. "To think that at times Joseph Smith had a dozen or more active lawsuits that he was handling is amazing," Walker said. "And it's not in a passive way. We find him actively involved, from scrutinizing the lawyers and their bills to what is going on in the case, if it's going well or poorly, and determining what direction to take. I think through these experiences, coupled with his innate ability, Joseph Smith proves to be extremely capable in understanding the legal process and his role both as a litigant and ultimately as a judge."
Madsen pointed out that the 220 cases were with one exception compressed into a 16-year time period, 1826-1844, averaging about one case a month. "That means a major chunk of his life was involved just in legal matters."
The two scholars have brought an attorney's methodology to the task of understanding Joseph Smith's legal environment. "We actually create case files for every lawsuit, including the pleadings, documents and the applicable law," Walker explained.
Unfortunately, they have no complete files, as many pleadings and documents no longer exist (several court houses burned down and destroyed all the records they held). To help fill in missing information and place the cases in historical context, they have collected law books from Joseph Smith's time and setting.
"The case law, statutes and commentary that we're interested in are the law that Joseph Smith's lawyers and the courts would have applied," Walker said. "And that has been a very fascinating history lesson of early 19th century law for us as lawyers."
In fact, a failing of some of Joseph's critics has been neglecting to view matters in the context of the times, the two men agreed. "We're particularly careful to try to be certain we're not open to that same criticism with what we produce; hence the need for early law books, early commentaries, and just sort of thinking in 19th century prose and legalese," Madsen said.
Aiding the effort are archivists, researchers and other lawyers, as well as a corps of young law students at the university from a course that the two attorneys teach with John Welch on Joseph Smtih and the law.
"This is our third year, and each year the class gets larger," Brother Walker said. "I think the students understand what we understand: that this is really both important and a unique opportunity to not only use our legal training and our interest in Church history, but to do it in a way that has never been done before." When published, the volumes, will cover the largest compilation of documents in history pertaining to Joseph Smith's legal cases and business affairs.
There is much to be learned from such a comprehensive study. For example, Joseph Smith spoke repeatedly of being plagued by "vexatious lawsuits." That was not just his manner of speaking. Madsen said a statute in Ohio defined a vexatious lawsuit as one in which the plaintiff, in certain cases, who brought an action and recovered $5 or less in damages was required to pay the court costs, often more than $5, even though he won the case.
"It acted as kind of a deterrent to some," Madsen said, "who were just going around suing people to be obnoxious."
Madsen said their study bears out the truth of Brigham Young's report that Joseph was never convicted in any criminal case in which he was accused.
As for civil cases, though they incurred business losses, the overwhelming evidence is that Joseph Smith and his associates made conscientious efforts to satisfy their obligations, Walker said. "With this perspective, it is not surprising to see in the correspondence that the creditors are enormously sympathetic to Joseph Smith and mindful of the persecutions that the Church often experienced."
It will not be covered until the latter volume in the series, but the case of the destruction of the Nauvoo Expositor is perhaps the most famous of the legal cases involving Joseph Smith, this is because it set in motion a chain of events that ended with the martyrdom of Joseph Smith and Hyrum Smith at Carthage Jail.
"As Gordon and I have worked through the events, we continue to understand it better," Brother Walker said.
Though the immediate charge in connection with the destruction of the libelous newspaper was riot, it was a charge of treason — for which bail could not be posted — that caused the two brothers to be held in the jail, where they were ultimately vulnerable to the mob that killed them.
Brother Madsen said a charge of treason in connection with a state statute rather than a federal law was and still is highly irregular. In fact, only two other such cases have ever been brought in U.S. history, both of them bearing no resemblance to the Carthage case and both of them occurring afterward.
Underpinning the treason charge against Joseph Smtih was his declaration of martial law in the face of a threat of mob violence against the people of Nauvoo. "Consequently," Brother Walker said, "I would say that Joseph Smith and Hyrum Smith were martyred for trying to protect their people. The Expositor was an underlying subplot to the story, but the reason they found themselves in that jail on the 27th of June, 1844, was not due to the destruction of the Expositor. It had to do with the fact that Joseph and Hyrum were making their best effort to protect the saints. And for that, they would be killed."
"Fillings, nothing more than fillings"...