The Judiciary and the Common Law in Utah Territory, 1850-61
Dialogue : A Journal of Mormon Thought
This article outlines the struggle between federal judges and the people of Utah from 1850 to 1861, showing that, in reality, it was a struggle over federal authority versus local authority. The Mormons did not accept common law (i.e., the common law of England, and its adaptation in various states), but, rather, felt justified in promoting what George A. Smith called 'mountain common law.' This was simply the assumption that they had the right to make their own laws, and not be bound by federal law that violated local perceptions and customs. This was one reason for the continuing quest for statehood. Polygamy, of course, was deeply involved in all the issues, but not until jurisdiction was taken away from local probate courts was polygamy successfully prosecuted. Homer concludes: 'The popular explanation for the well-documentd rift between the Mormon heirarchy and gentile judiciary in Utah Territory during the 1850s is that the officials were unsavory, immoral, incompetent, and incapable of performing their judicial functions with dignity. This explanation ignores both the power struggle between the judges and the Mormon leadership over the right to govern the territory and the applicability of the common law, and the national debate on common law in the federal courts and the federal right to regulate domestic institutions in the territories. If, on occassion, it was easier for the Mormons to accuse the judges of promiscuity, drinking, and incomptence and for the judges to accuse the Mormons of treason and lechery, both parties recognized that their underlying quarrel was the deadly serious struggle over who should govern the territory and whether the Mormons could practice plural marriage.' Eventually the contest was decided in favor of the federal government.