A Legal Analysis
“Secret Combinations”: A Legal Analysis
Since the publication of the Book of Mormon in 1830, those subscribing to an
environmental explanation have sometimes argued that its account of Gadianton
robbers and secret combinations is a thinly veiled attack on Masonry, reflecting
the burst of anti-Masonic feeling in New York in the last half of the 1820s.
Alexander Campbell seems to have been the first one to advance the anti-Masonic
thesis, writing in February 1831.1 However, Campbell soon rejected his original
explanation in favor of the Spalding theory, which rapidly became the dominant
non-Mormon explanation for the Book of Mormon in that century.2 The anti-Masonic
thesis, however, was revived and deepened in the opening decades of the twentieth
century.3 By the time of her famous 1945 biography of Joseph Smith, Fawn Brodie
was confidently asserting that the Book of Mormon’s discussion of secret combinations
“were bald parallels of Masonic oaths.”4 Since the publication of No Man
Knows My History, the anti-Masonic thesis has become common among non-Latter-day
Saint writers on Mormonism.5 In recent years, Dan Vogel has been its most articulate
Scholars have disputed the thesis. Richard Bushman, Blake Ostler, Daniel Peterson,
and D. Michael Quinn have been its main critics.7 The basic thrust of their
arguments is that the claimed parallels between Masonry and the Gadianton robbers
are superficial. Peterson, for example, notes that some proponents of the thesis
have argued that the fact that both Masons and Gadianton robbers wore lambskin
aprons is significant (see 3 Nephi 4:7).8 However, he argues that this
parallel is trivial since there is but a single reference to “lambskins”
as Gadianton garb, which has no particular significance in the narrative, and
the Book of Mormon lists other clothing worn by the robbers.9 The critics of
the anti-Masonic thesis also point out that the Book of Mormon’s secret
combinations exhibit features absent from anti-Masonic rhetoric.10 For example,
Blake Ostler has argued that “the Book of Mormon secret societies differ
from Masons in the precise ways they are similar to ancient Near Eastern bands
of robbers.”11 In addition, critics of the thesis argue that certain key
features of anti-Masonic rhetoric are absent from the Book of Mormon’s
discussions of Gadianton robbers. For example, Quinn argues that a stock element
of the anti-Masonic furor of the 1820s was a denial that Masonry had any ancient
origins.12 In contrast, even the opponents of secret combinations within the
Book of Mormon narrative acknowledge their ancient roots (see 2 Nephi 26:22;
Alma 37:21-30; 3 Nephi 3:9).
The argument over the anti-Masonic thesis is multifaceted, involving as it does
attempts to find or refute parallels between two complex phenomena. In his most
recent work on the subject, Vogel claims to “respond to all of the major
and most, if not all, of the minor arguments against the anti-Masonic thesis.”13
He then goes on to discuss no less than seventeen specific subdisputes.14 A
comprehensive discussion of the debate is beyond the scope of this paper. I
will not survey the full range of arguments offered for or against the anti-Masonic
thesis, nor will I attempt to lay the issue to rest.15 Instead, I will focus
on one possible line of analysis of a single issue within the debate.
One claim made by the proponents of the anti-Masonic thesis is that during
the late 1820s the term secret combination had a unique and nearly
exclusive association with Masonry. Vogel claims that “after extensive reading
in the primary pre-1830 sources” he was “unable to find another use for the
term and doubted that one would be found.”16 It is, of course, undisputed that
the term secret combination was used in the late 1820s to refer to
Masonry.17 What critics of the anti-Masonic thesis question is whether or not
it had an exclusively Masonic meaning.18 I hope to throw light on this question
by examining the use of the phrase secret combination in legal materials
both from before the publication of the Book of Mormon and from the subsequent
period of Joseph Smith’s lifetime. This approach has been taken and criticized
before.19 However, I hope to show that previous attempts to use legal materials
have been incomplete and in some ways mistaken. I also seek to respond to the
claim that such legal materials are irrelevant to the anti-Masonic thesis. I
conclude that the phrase secret combination did not have an exclusively
anti-Masonic meaning either before or after the publication of the Book of Mormon
and that, on the contrary, it was a term used to discuss hidden, criminal conspiracies.
In 1826, Captain William Morgan, a resident of Canandaigua, a town a short distance
from Palmyra, New York, prepared to publish an exposé of secret Masonic
rituals after quarreling with members of his Masonic lodge.20 However, he never
printed his tell-all account. In September of that year, he disappeared near
Niagara, and it was almost universally believed that he had been murdered by
vengeful Masons. When those indicted for the murder were either acquitted or
received light sentences, there was a wave of anti-Masonic agitation in response.
New York State saw repeated conventions, mass meetings, and newspaper articles
denouncing Masonry as a threat to the Republic and a criminal fraternity bent
on protecting its own. In particular, people were outraged at the perceived
infiltration and perversion of the legal system by Masons in the Morgan case.21
The epicenter of all this activity was just a few miles from Joseph Smith’s
home in Palmyra. Anti-Masonry even became, for a short time, a national political
issue in the late 1820s and early 1830s.22 Anti-Masons repeatedly referred to
Masonry as a “secret combination.”23 Proponents of the anti-Masonic
thesis have pointed to this phrase as one piece of evidence supporting their
argument, claiming that the term was so closely tied with Masonry as to constitute
an intentional reference.24
In order to effectively criticize the claim that the phrase secret combination
refers exclusively to Masonry, Quinn has argued that “it is necessary to find
someone (preferably a non-Mason) using the phrase ‘secret combination’ in a
non-Masonic context before the . . . murder of William Morgan in 1826.”25
Peterson has found one 1826 reference to “secret combination” that is arguably
outside of the context of anti-Masonry.26 On 15 December 1826, Andrew Jackson
wrote a letter to Sam Houston, attacking his long-time political opponent Henry
Clay.27 In it, he accused Clay of “secrete [sic] combinations of base slander”
to smear Jackson’s wife in the press.28 Peterson has pointed to this letter
as an instance of a non-Masonic context in which the phrase secret combination
was used.29 Quinn has criticized this conclusion.30 According to Quinn, Jackson
was an active Mason attacking Clay, a lapsed Mason.31 He thus speculates that
Jackson may have been using the phrase secret combination as a sarcastic
dig at Clay.32 Although there is no direct evidence that Jackson meant the term
to convey any Masonic subtext, Vogel refers to Quinn’s argument appreciatively.33
He also states that “regardless, the term ‘secret combination’ did not take
on its full anti-Masonic meaning until 1827-28.”34 This is a strangely inconsistent
addition to Quinn’s analysis since Vogel seems, in effect, to argue that Jackson’s
comment was an ironic play on a common political phrase that would not become
a common political phrase for another two years.
Looking at Legal Materials
Peterson has also looked at legal materials. In 1990, John W. Welch, a professor
at Brigham Young University’s J. Reuben Clark Law School, conducted a
computerized search of nineteenth-century legal materials for Peterson.35 In
his piece, Peterson noted the limitations of his research: “Unfortunately,
. . . many states did not begin printing reports with any degree of comprehensiveness
until midway through the nineteenth century, and a large number of the older
opinions are not on computer since they are not of current legal interest.”36
Nevertheless, Peterson located ten legal cases from the nineteenth century
that used the phrase secret combination.37 The earliest reported opinion
he located was from 1850,38 and all but one of the cases he cited were from
federal courts, half of them being from the United States Supreme Court.39 Although
he does not mention it, the exclusively federal nature of the materials that
Peterson seems to have examined is potentially significant because during the
nineteenth century, there was comparatively little federal law. The amount of
federal criminal law was miniscule. Finally, very few criminal cases made their
way to the U.S. Supreme Court.40 Indeed, under the Judiciary Act of 1789 in
force during the lifetime of Joseph Smith, the U.S. Supreme Court lacked appellate
jurisdiction in criminal cases,41 an important point since the term combination
was often used to refer to conspiracy42—one would expect it to appear more
often in criminal matters. In 1990, Welch did not have extensive access to computerized
versions of early nineteenth-century state opinions,43 although at least partial
federal coverage—mainly Supreme Court decisions—would have extended into the
eighteenth century. Thus, the legal universe that Peterson’s research covered
was severely constrained, and his results were understandably inconclusive.
In his book Digging in Cumorah, Mark Thomas also examines early legal
materials as a potential source for alternate uses of “secret combination.”44
He concludes that “Peterson’s hypothesis that ‘secret combinations’ is a vague,
generalized symbol with no specific referent cannot be substantiated by the
very legal documents where he suggests that evidence will be found.”45 Unfortunately,
Thomas’s examination of legal sources is too narrow to be of any real value.
Apparently taken with Peterson’s discussion of labor disputes and the possible
connection of the phrase secret combination with early labor unions,
Thomas turned his attention exclusively to six early nineteenth-century cases
dealing with striking workers.46 Thomas claims that Peterson “is certain that
an examination of precedent-setting cases of labor unions (‘combinations’) will
support his broad interpretation that excludes Masonry.”47 While Peterson does
discuss unions, the late nineteenth-century cases he cites deal with a variety
of subjects.48 Nevertheless, Thomas’s research is limited to labor cases. This
choice is puzzling. The proto-unionists that Thomas discusses were prosecuted
under the common law of conspiracy. The labor cases simply use the term combination
to refer to the agreement necessary to form the conspiracy. There is nothing
special about its application to labor unions. Once this point is understood,
Thomas’s choice to limit his research to labor disputes makes little sense.
What is more, since labor cases formed only a miniscule fraction of all early
nineteenth-century litigation,49 the fact that the phrase secret combination
does not occur in a sample of those cases has limited significance since the
vast majority of nineteenth-century cases involving combinations of any kind
had nothing to do with labor unions. For example, I was able to locate only
one appellate case from anywhere in the United States before 1826 involving
labor unions and the word combination,50 yet during just the period
of the 1820s, the supreme court of New York alone used the term in over thirty
Combinations and Secret Combinations in Early Judicial Opinions
Since Peterson made the first foray into legal materials in search of secret
combinations more than a decade ago, the availability of early judicial opinions
in computerized format has dramatically expanded. It is now possible to search
the decisions of many state and federal courts from the closing decades of the
eighteenth and early decades of the nineteenth centuries. However, there are
still reasons to be cautious about the results of such searches. First, coverage
remains very incomplete both because not all early case reporters are available
in computerized format and because coverage of cases in the early reporters
themselves is very incomplete.52
Second, the vast majority of the available cases come from appellate courts,
which fact distorts any searches in a variety of ways. Appellate decisions make
up only a small fraction of all litigation. Judges decide most cases without
any published opinion, and this was more markedly the case in the early nineteenth
century than today. Most cases are never appealed. Furthermore, the cases in
the appellate reports tend to be exceptional. This does not mean that they were
the high-profile cases of the time, although sometimes they were. Rather it
means that they have a different character than most litigation. Generally cases
turn on questions of fact. “Did John actually steal Abner’s cow?”
However, appellate cases generally turn on issues of law. “Can multiple
defendants be joined in a single suit at equity?” Although the categories
of law and fact were more fluid in the early nineteenth century, appellate cases
from the period still tend to contain involved legal discussion. This does not
mean that the cases were exclusively technical or that they were devoid of discussion
of events. On the contrary, they often provide fascinating windows into bits
of late eighteenth- and early nineteenth-century life. However, in evaluating
the virtues and the limitations of searching such materials, it is important
to remember that we are looking at a narrow and, in some ways, unrepresentative
slice of the legal past.
Webster’s 1828 dictionary defines the word combination as an
Intimate union, or association of two or more persons or things, by set purpose
or agreement, for effecting some object, by joint operation; in a good sense,
when the object is laudable; in an ill sense, when it is illegal or iniquitous.
It is sometimes equivalent to league, or to conspiracy. We say a combination
of men to overthrow government, or a combination to resist oppression.53
It is generally acknowledged that combination was a widely used word
in the 1820s. Certainly, a review of judicial opinions from the period bears
this out. For example, a search of pre-1826 legal opinions reveals that the
term combination was used in conjunction with conspiracy or fraud in
more than 150 cases.54 Thus the New York Supreme Court wrote in 1823 of a “case
of a combination or conspiracy,”55 and the high court of Maryland in 1821 referred
to a statute that “declaring . . . to be conspirators, [those] who
should be engaged in certain combinations, subjected them to the law of conspiracy
as it then existed.”56 The most common formulation seems to have been fraudulent
combination. For example, during the period from 1820 to 1823 alone, there
were twelve cases in the high court of Joseph Smith’s New York containing that
The word combination also seems to have had connotations of secrecy.
First, as already noted, there is its ubiquitous association with fraud, which
always carries with it such connotations. In addition, combination
was frequently used as though it were synonymous with secret agreement.
For example, the supreme court of Pennsylvania, writing in 1810, while summarizing
the Roman law of fraud for its common law readers, noted “that fraud, according
to the understanding of civilians, consisted in combination and secrecy, benefit
to ourselves, and injury to others.”58 In another fraud case decided in the
same year, the same court used the term secret contract as a synonym
for combination.59 The cases also frequently laid emphasis on the secrecy
in which combinations conduct their affairs. Thus, in an 1820 salvage case,
the court discussed the way in which the law created incentives to avoid “combination[s]
to secrete” shipwrecked valuables and referred to such combinations as an example
of “covert malversation [“corrupt administration”].”60 Likewise an early Kentucky
case speaks of the land transfers “secretly made” by a “fraudulent combination.”61
In 1799, the Maryland Chancery, in a case involving the various financial misdeeds
of an insolvent debtor, spoke of the “secret act” of a “fraudulent combination”
directed at his creditors.62 Perhaps the most bizarre case that I located was
decided by the Connecticut Superior Court in 1793. The case involved a slander
lawsuit in which the plaintiff alleged that the defendants falsely accused him
of complicity in rape in order to “cover the shame” of the supposed rape victim.
In its opinion, the court discusses the alleged “wicked combination” and its
relationship to the “secret assault on the body of Marcia Maples.”63
Broadening the review to include cases from after the outbreak of anti-Masonic
agitation but still within the lifetime of Joseph Smith reveals the same patterns
of use. Four years after the publication of the Book of Mormon, in one of the
ubiquitous cases involving shady land deals, the supreme court of Virginia discussed
a “secret understanding and a combination” between real estate speculators.64
A year earlier a Kentucky court heard a case regarding “the combination
. . . to secrete” debt from creditors.65 An opinion written
by the Illinois Supreme Court during the period Joseph Smith resided in the
state speaks of a crooked attorney who, “secretly combining” with
another against his client, formed a “corrupt combination.”66 A
Missouri case from 1840, in discussing litigation regarding real estate transactions,
mentions a “combination” between speculators and “other persons
to secrete” deeds to land.67
These cases suggest three things. First, in the period prior to the anti-Masonic
outcry of the late 1820s, combination was widely used and had a richer
meaning than simply conspiracy or agreement. It could also carry strong overtones
of secrecy, deception, and covertness. Second, combination was not
a term specific to any one branch of activity. The opinions speak with equal
ease about combinations to take abandoned shipwrecks and combinations to avoid
debt. Third, the anti-Masonic rhetoric of the 1820s does not seem to have had
any effect on the general use of the term. Judging by the judicial materials,
the term has absolutely no association with Masonry either before or after Morgan’s
1826 disappearance. Nothing indicates that the term carried any Masonic subtext
in later cases. Given this background meaning, combination was a natural
choice for anti-Masons seeking an epitaph with which to label the objects of
their propaganda. However, the same background meaning also provides a plausible
explanation of why in translating the Book of Mormon Joseph Smith would have
chosen the word to describe the Gadianton robbers.
Although both Masons and Gadiantons were referred to simply as a “combination”
(see Helaman 2:8; Ether 8:18), the disputed phrase in the controversy over the
anti-Masonic thesis is secret combination. However, this phrase also
appears repeatedly in judicial opinions from the period. I was able to locate
two cases from before 1826 using the precise term. In addition several cases
from after the publication of the Book of Mormon use the term in substantially
the same way as the pre-1826 cases. This in turn suggests that, contrary to
what proponents of the anti-Masonic thesis have implied, the anti-Masonic uproar
of the 1820s did not dramatically change the meaning or usage of the term, although
any such claim must be qualified by the conservative nature of legal language.
The first opinion using the term that I located was the case of Duval
v. Burtis, decided by the Kentucky Court of Appeals in 1819.68 The case
revolved around a confused set of transactions involving negotiable instruments,
cross-boarder attachments of property, lawsuits in two states, an attempt to
assign the rights from one lawsuit to another, an alleged double- and triple-crossing
assistant to a con man, and an expensive Kentucky horse named Porto. According
to the plaintiff, the defendant had been in league with a shady character from
Tennessee who purchased Porto on credit and then left the state. In his response
to the suit, the defendant denied that there was any “secret combination” between
himself and the Tennessean. Although the case touches on a wide variety of issues
in a comparatively short opinion (two pages), one of the issues about which
there is not even the slightest hint is Masonry. Absolutely nothing in the opinion
suggests that the court is using the term secret combination to refer
to anything other than a covert pact to steal a horse.
The second pre-1826 case that I located was much closer to the publication
of the Book of Mormon in both time and space. In July 1825, just fourteen months
before Morgan’s disappearance in the same state, the supreme court of New York
issued its opinion in Fellows v. Fellows.69 This opinion is a much
grander document than the brief ruling of the court in Duval v. Burris.
Modeled on the early opinions of the House of Lords, it contains a lengthy summary
of the case by the clerk of the court, excerpts from the speeches offered by
counsel during oral argument, and a string of separate opinions by the court’s
judges. The case involved a bitter family dispute that stretched over more than
a decade. Stripping away the complex financial machinations of all parties,
the story is simple. A son, in order to sell real estate encumbered with various
obligations, transferred title to his father, who was to hold the property in
trust during the course of the sale, which was to extend over several years.
The father, however, swindled his son, sold the property, and pocketed the proceeds.
The son then died, and his widow obtained a judgment against the father. The
father, in a vain attempt to avoid the judgment, transferred his property to
another son, who was to hold it in trust for him. The widow then brought a second
suit against all her in-laws, arguing that the whole scheme was a fraud. In
the case before the supreme court upholding her victory in the second lawsuit,
the judges and attorneys used various terms to describe the erring members of
the Fellows clan. They were guilty of “combining and confederating.” They constituted
a “fraudulent combination,” an “unlawful combination,” a “combination and confederacy,”
and a “secret and fraudulent combination.” Finally, Justice Woodworth referred
to them as a “fraudulent and secret combination.”
The Fellows case is especially instructive for two reasons. First,
it provides a clear and obviously non-Masonic use of the term secret combination
from the immediate vicinity of Joseph Smith that is almost contemporaneous with
the outbreak of the anti-Masonic agitation that is supposed to have inspired
the Gadianton robbers. Second, the involved discussion of the various actors
in the reported opinion and their frequent use of differing phrases to describe
the same criminal activity provide a marvelous study of how the phrase secret
combination was understood in relation to other terms. What Fellows
shows is that secret combination, far from being a bit of jargon newly
coined for the exclusive use of anti-Masons in the late 1820s, fits comfortably
into a set of very common terms that had been used for decades to describe all
kinds of criminal activities.
Furthermore, if we compare these cases with others using the term secret
combination in the two decades after the publication of the Book of Mormon,
we find that the use and meaning of the term seems untouched by anti-Masonry
and carries no new overtones. In 1833, members of the Tennessee Supreme Court
considered a case in which they expressed concern about adopting a rule that
would expose sureties to the risk of ruin at the hands of “secret combinations.”70
Seven years later, a Kentucky court, in discussing “robbers, thieves, etc.,”
suggested that those using common carriers were exposed to a special risk from
such “secret combinations.”71 Interestingly, this case used the term specifically
to refer to conspiracies between legitimate businesses and outlaws on the highway,
which is suggestive, given the Book of Mormon’s repeated references to the Gadiantons
as robbers (see Helaman 6:18; 3 Nephi 1:27; 4 Nephi 1:17) and their
sometime association with respectable elites (see Helaman 1-2).72 An 1843 case
from South Carolina uses the phrase in a different context. After the Bank of
South Carolina suspended specie payments three times during the financial panics
of the 1830s, the state attorney general claimed that the bank had violated
its charter and should be dissolved. A circuit court that ruled in the bank’s
favor discussed the various legitimate reasons a bank might suspend specie payments.
Among them it listed “secret combinations” of predatory foreign corporations.73
These cases suggest that contrary to the position occasionally adopted by Quinn
and Vogel,74 one need not assume that every post-1826 reference to secret combinations
carries an anti-Masonic subtext or has an anti-Masonic rhetorical pedigree.
Rather, the legal materials suggest that the phrase carried a fairly constant
meaning both before and after the outbreak of anti-Masonic agitation.
Vogel has questioned the usefulness of examining legal documents at all for
understanding the language of the Book of Mormon. “Legalese,” he
declares, “was not the language of Joseph Smith, nor was it the language
of his intended audience.”75 There is some merit to this criticism. Certainly,
lawyers have a well-deserved reputation for tortured prose, and as I indicated
earlier, appellate cases such as those I have examined are more likely to be
technical. Likewise, while Joseph Smith studied law later when he was serving
as a judge in Nauvoo76 and some of his revelations from that period use legal
terms (see D&C 132:7),77 there is no evidence that he had any extensive
familiarity with legal materials in the Palmyra period.78 Nor is there any reason
to suppose that the Book of Mormon is (generally speaking) written in technical
However, it would be unwise to overstate the force of this argument. Despite
its reputation among lay people, legal language is not an impenetrable mass
of exclusively technical jargon. Certainly, legal writing can be turgid, but
much of it uses words in their ordinary senses. To evaluate the strength of
the “legalese” criticism, it is important to understand something
about legal language. While we should be cautious in generalizing about ordinary
language on the basis of legal materials, it is simplistic to assume that all
judicial opinions can be dismissed as irrelevant “legalese.” Rather,
attention to the way specific words are used and an appreciation for what is—and
is not—technical about legal language is needed.
Obviously, legal language contains many technical terms. These fall into essentially
three different categories. First, there are those words that are specific to
the law itself. In Joseph Smith’s day most of these terms were drawn from the
common law of England, which was inherited by Americans at the time of the Revolution.
The exclusively technical terms of this body of law, in turn, date back to the
late medieval period and consist of a pastiche of Latin words and what is known
as “law French.” Law French was a strange linguistic descendant of the medieval
French spoken by the eleventh-century Norman conquerors of England. A mongrel
language that reminded one modern legal scholar of “the taunting Frenchman from
Monty Python and the Holy Grail,”80 law French was the official spoken
language of the English courts from about 1250 until about 1500, and it continued
to be the language of written reports for about another century thereafter.81
From it are drawn terms such as replevin,82 trover,83 larceny,84
and trespass.85 Other technical terms such as habeas corpus,86
assumpsit,87 and nisi prius88 are either Latin or have Latin
roots. All of these terms are purely technical and have no English meaning outside
of the common law. In the case of some of the words drawn from law French, they
have no nonlegal meaning at all, having never been natural words in any tongue
other than the unique language of the medieval English courts.
The second class of technical terms includes those words that have meanings
in ordinary English but have substantially different meanings in the law. A
classic example of this kind of term is the word malice. In ordinary
speech malice has the connotation of malevolence and conscious ill
will. In the common law, however, malice is an element of the crime
of murder—famously defined as “the unlawful killing of any reasonable creature
in being with malice aforethought”89—and has a significantly different meaning.
Malice specifically refers to the state of mind necessary for a homicide
to become a murder. Generally, this has been understood at a minimum as knowledge
that the actions one is engaged in will result in the death of another. What
has been universally agreed is that subjective ill will is not a necessary component
of the legal concept of malice. Thus, the loving child who poisons her dying
mother in order to ease her suffering from a terminal illness has acted with
“malice” under the law, regardless of her subjective altruism. However, the
man who, in a fit of rage, insults his worst enemy who then, as a result of
a rare disease, dies of a heart attack has not acted with “malice,” despite
his hatred and ill will.
Third, there are those terms that have substantially the same meaning in ordinary
English and in the law but which the law defines with greater precision. For
example, in ordinary speech the word assault means “to attack.” In
the law, it has essentially the same meaning but is refined with greater precision.
An assault is an action by one person that causes another person to have a reasonable
fear of serious bodily injury. Thus a man who takes a swing at his wife’s face
with a baseball bat has assaulted her in both the ordinary and legal sense of
the word. On the other hand, a toddler who kicks an NFL linebacker has not committed
an assault because while he attacks the linebacker, any fear of serious bodily
injury that the linebacker might have is not reasonable. Likewise, a man who
brandishes a machete threateningly over his victim’s head has not assaulted
him if the victim is looking the other way. This is because the victim’s ignorance
of the machete means that it cannot cause him to have any fear of bodily injury
at all. Such examples of precise definitions that substantially track ordinary
speech but that occasionally produce anomalous results could be multiplied endlessly.
For example, the technical definition of murder given in the preceding paragraph
falls into this category.
Armed with this more nuanced understanding of the technicality of legal language,
it is possible to better appreciate the usefulness of early judicial opinions
for evaluating the anti-Masonic thesis. The phrases combination and
secret combination do not seem to fall into any of these classes of
technical “legalese.” Combination was not a specifically legal term
of art such as words drawn from Latin or law French. Nor does it seem to have
had a technical meaning in either of the two ways explained above.
Perhaps significantly, none of the cases that I reviewed involved jury instructions
regarding the meaning of the word combination, which further strengthens
the claim that the word was not being used in a technical sense. In instructing
juries, judges often provide explanations of technical legal terms. I qualify
the significance of this absence for two reasons. First, the coverage of published
opinions during this era is incomplete.90 Second, prior to the American Revolution,
juries enjoyed a great deal of autonomy and were relatively free from strict
judicial oversight.91 In the late eighteenth and early nineteenth centuries,
however, this changed as judges began to “rein in” juries with, among other
things, more technical instructions.92 Juries in the 1820s still enjoyed a greater
amount of autonomy than do modern juries. Thus even though judges were seeking
to more tightly control juries, we should expect fewer cases involving jury
instructions than we see today. Nevertheless, New York opinions from before
1826 included discussion of jury instructions related to trespass on the case,93
larceny,94 and the distinction between theft and ordinary trespass.95 It is
thus not unreasonable to expect that there would be jury instructions defining
combination if it were in fact a technical term. The absence of such
instructions is suggestive. All of this points to the conclusion that, contrary
to what some have suggested,96 combination and secret combination
were not technical legal terms in the first half of the nineteenth century.
They were used in legal opinions, but they were not “legalese.” Rather they
were similar to terms such as trade,97 business, or livelihood98
that appeared in legal opinions without taking on any special legal meaning.
Far from being “irrelevant” for understanding normal language, such nontechnical
legal materials can provide us with valid samples of how common words and phrases
Limitations, Implications, and Conclusions
Legal materials suggest that contrary to the claims of proponents of the anti-Masonic
thesis, the term secret combination did not have an exclusively anti-Masonic
meaning. Rather it seems to have been used as a general term to refer to hidden
criminal agreements and conspiracies. It was used this way prior to the disappearance
of Captain Morgan and continued to be used in the same way after the outbreak
of anti-Masonic agitation. The continuity of meaning in the legal opinions suggests
that those who see in every post-1826 use of the term an anti-Masonic subtext
are probably overplaying the linguistic influence of anti-Masonry. Rather, in
the absence of specific evidence linking a use of the term to anti-Masonry,
the best way of reading post-1826 uses of secret combination is probably
to simply look at their contexts and take the plain meaning at face value. Admittedly,
there are more post-1826 occurrences of the term than pre-1826 occurrences in
the legal materials. It might be tempting to attribute this increase to the
influence of anti-Masonic rhetoric. However, it is probably a mistake to do
so. A more likely explanation is simply that there were more judicial opinions
as the century progressed. As the American population and the American economy
grew during the first half of the century, the amount of litigation increased
accordingly. In addition, as the century progressed, the publication of judicial
opinions became more regular and comprehensive. The influence of anti-Masonry
as an explanation is simply dwarfed in comparison to the explosion in the volume
of published opinions during the nineteenth century.99
Still, it is important to understand the limitations of legal materials. Judicial
opinions tell us something about the way in which language was understood at
different periods of time. However, the meaning of the phrase secret combination
is only one part—and not the most important part—of the debate over the anti-Masonic
thesis. Obviously, analysis of legal materials is not the same thing as analysis
of the Book of Mormon, and an interpretation of the phrase secret combination
is not the same thing as an interpretation of the Gadianton robbers. These are
important issues, but they are clearly beyond the scope of this paper. Likewise,
legal materials can be technical. Their use will require a nuanced sense of
when it is—and is not—possible to generalize based on legal writings.
It is also important to understand how narrow the scope of materials covered
by even my comparatively comprehensive search is. The reported decisions of
the appellate courts from the early nineteenth century form a very small part
of the legal universe. Legal language, in turn, forms only a narrow part of
all language. The narrowness of my research cuts both ways. Proponents of the
anti-Masonic thesis can point out that a review of such materials does not constitute
extensive reading in the primary pre-1830 sources.100 On the other hand, the
repeated appearance of the phrase secret combinations in such a narrow
slice of language also suggests that its use may have been much more widespread.
Finally, it is important to understand the way in which previous discussions
of legal materials in the context of the anti-Masonic thesis have been mistaken.
Neither combination nor secret combination were technical
legal terms. Their use was not confined to any one area of the law. It is thus
a mistake to expect to find them especially concentrated in one kind of litigation.
It is also a mistake to assume that their use in judicial opinions would have
been unintelligible or foreign to lay people. Nor should we expect to find some
alternate exclusive use of the term. Thus, while the anti-Masonic thesis posits
that secret combination was a term with an exclusively (or nearly exclusively)
anti-Masonic meaning, in using legal materials to criticize the thesis, it is
a mistake to go looking for an alternative exclusive meaning, whether it be
describing labor unions or guerrilla fighters.
Ultimately, I think that the issue of the term secret combination
and the anti-Masonic thesis comes down to a choice between two options. First
is the claim that secret combination carried such an exclusively anti-Masonic
meaning that its use in the Book of Mormon, especially with regard to latter-day
prophecies, was a direct and intentional reference to Masonry.101 This position
depends on the exclusivity and uniqueness of the anti-Masonic use of the term.
The second position is that the term had a broader meaning and cannot be read
as a simple reference to Masonry. This position does not involve a denial that
anti-Masonry may have changed the connotation of the term in some contexts or
that anti-Masonic uses of the phrase are useful in understanding the original
language of the Book of Mormon translation. However, it does involve the claim
that secret combination had a broader meaning than that attributed
to it by proponents of the anti-Masonic thesis. I believe that the legal materials
discussed in this paper severely undermine the first position and suggest that
the phrase secret combination cannot be read as a simple reference
to Masonry. On the contrary, judicial opinions from the early nineteenth century
provide numerous, concrete examples of non-Masonic uses of the term.
- See Richard L. Bushman, Joseph Smith and the Beginnings of Mormonism
(Urbana: University of Illinois Press, 1984), 125.
- See ibid., 231 n. 37 (which states that Campbell accepted the “Spalding-Rigdon
hypothesis” later in life) and ibid., 127 (which states that the Spalding
theory was the dominant non-Latter-day Saint explanation of the Book of Mormon
in the nineteenth century). For a summary of the Spalding theory, see Lester
E. Bush Jr., “The Spalding Theory Then and Now,” Dialogue 10/4 (1977):
- See Walter F. Prince, “Psychological Tests for the Authorship of the Book
of Mormon,” American Journal of Psychology 28 (July 1917): 373-89.
- Fawn M. Brodie, No Man Knows My History (New York: Knopf, 1945),
- See, for example, Thomas F. O’Dea, The Mormons (Chicago: University
of Chicago Press, 1957), 23, 35, 57; Robert N. Hullinger, Mormon Answer
to Skepticism: Why Joseph Smith Wrote the Book of Mormon (St. Louis:
Clayton, 1980), 100-104; David Persuitte, Joseph Smith and the Origins
of the Book of Mormon (Jefferson, NC: McFarland, 1985), 174-80.
- See Dan Vogel, “Mormonism’s ‘Anti-Masonick Bible,'” John Whitmer Historical
Association Journal 9 (1989): 17-30; Dan Vogel, “Echoes of Anti-Masonry:
A Rejoinder to the Critics of the Anti-Masonic Thesis,” in American Apocrypha,
ed. Dan Vogel and Brent Lee Metcalfe (Salt Lake City: Signature Books, 2002),
- Bushman, Joseph Smith and the Beginnings of Mormonism, 128-31;
Blake Ostler, “The Book of Mormon as a Modern Expansion of an Ancient Source,”
Dialogue 20/1 (1987): 66, 73-76; Daniel C. Peterson, “Notes on ‘Gadianton
Masonry,'” in Warfare in the Book of Mormon, ed. Stephen D. Ricks
and William J. Hamblin (Salt Lake City: Deseret Book and FARMS, 1990), 181;
D. Michael Quinn, Early Mormonism and the Magic World View, 2nd ed.
(Salt Lake City: Signature Books, 1997), 202 and 511-12 n. 216. All citations
in this paper are to this revised edition of Quinn’s book. Quinn takes the
anomalous position that secret combinations in the Book of Mormon refer to
black magic and occult murders, or at any rate that they were understood this
way by the book’s first readers. Quinn, Early Mormonism and the Magic
World View, 207. However, Quinn’s thesis does not seem to have caught
on even with environmental critics eager to locate the Book of Mormon entirely
in a nineteenth-century context. See, for example, Vogel, “Echoes of Anti-Masonry,”
276. For a recent discussion, see Paul Mouritsen, “Secret Combinations and
Flaxen Cords: Anti-Masonic Rhetoric and the Book of Mormon,” Journal of
Book of Mormon Studies 12/1 (2003): 64-77.
- Peterson, “Notes on ‘Gadianton Masonry,'” 180.
- Ibid., 203. Matthew B. Brown, “Girded About with a Lambskin,” Journal
of Book of Mormon Studies 6/2 (1997): 124-51, provides a much lengthier
treatment of the issue. Brown argues that the lambskin passages are more important
to the narrative than Peterson claims. However, Brown also holds that rather
than being a Masonic reference, the lambskins in the Book of Mormon may have
connections with ritual clothing that was worn in ancient Israel, Egypt, and
- See, for example, Ostler, “Book of Mormon as a Modern Expansion,”
- Ibid., 74. While Ostler rejects a crude version of the anti-Masonic thesis
and regards the Book of Mormon as at least in part an authentic ancient text,
he believes that anti-Masonic rhetoric had some influence on the Book of Mormon.
He writes: “[Certain passages about secret combinations] appear to be
influenced by anti-Masonic terminology and concerns. They may be explained best,
it seems to me, as Joseph Smith’s independent commentary on Masonry, sparked
by his reflection on Nephite secret combinations.” Ibid., 76.
- Quinn, Early Mormonism and the Magic World View, 203.
- Vogel, “Echoes of Anti-Masonry,” 277.
- See ibid., 277-305.
- Participants on both sides have claimed that the debate has been decisively
settled. Compare William J. Hamblin, “An Apologist for the Critics: Brent
Lee Metcalfe’s Assumptions and Methodologies,” Review of Books on the
Book of Mormon 6/1 (1994): 499-500 (which states that Daniel Peterson’s
work had definitively laid the anti-Masonic thesis to rest) with Vogel, “Echoes
of Anti-Masonry,” 275 (which states that the truth of the anti-Masonic thesis
has “long [been] regarded as obvious”). I will take the fact that ink continues
to be spilled after more than 170 years as evidence that the question remains
open to fruitful discussion.
- Vogel, “Echoes of Anti-Masonry,” 318 n. 75. Compare with Peterson,
“‘Secret Combinations’ Revisited,” Journal of Book of Mormon Studies
1 (1992): 184, 185 n. 5. Peterson writes, “On 26 August 1989, Vogel and
his sometime coauthor Brent Metcalfe, in a Salt Lake City conversation with
me and my colleague, Prof. Stephen D. Ricks, declared flatly that the phrase
‘secret combination’ was never used at the time of the translation and publication
of the Book of Mormon, except to refer to Freemasonry.” Ibid., 185 n. 5.
- Dan Vogel, as quoted in Peterson, “‘Secret Combinations’ Revisited,” 184.
- See Peterson, “Notes on ‘Gadianton Masonry,'” 189-97; Quinn, Early Mormonism
and the Magic World View, 511-12 n. 216.
- See Peterson, “Notes on ‘Gadianton Masonry,'” 191-93; and Vogel, “Echoes
of Anti-Masonry,” 300-301.
- See Allen E. Roberts, Freemasonry in American History (Richmond,
VA: Macoy and Masonic Supply, 1985), 228-29.
- Vogel, “Mormonism’s ‘Anti-Masonick Bible,'”
- Ibid., 19-21.
- See, for example, ibid., 22.
- Vogel, “Echoes of Anti-Masonry,” 300.
- Quinn, Early Mormonism and the Magic World View, 511 n. 216.
- Peterson, “‘Secret Combinations’ Revisited,” 186-87.
- Ibid., 187.
- Quinn, Early Mormonism and the Magic World View, 511-12 n. 216.
- Ibid. But Peterson noted the connections of Jackson and Clay to Masonry
in his article. See Peterson, “‘Secret Combinations’ Revisited,”
187 and 187 n. 11.
- Quinn, Early Mormonism and the Magic World View, 512 n. 216.
- Vogel, “Echoes of Anti-Masonry,” 301-2.
- Ibid., 302.
- Peterson, “Notes on ‘Gadianton Masonry,'” 219 n. 74.
- Ibid., 191-92.
- Ibid., 190-93.
- The case is Marshall v. Baltimore & Ohio Railroad Co., 57 U.S.
314 (1850); Peterson, “Notes on ‘Gadianton Masonry,'” 192.
- Peterson, “Notes on ‘Gadianton Masonry,'” 190-93.
- Today the Supreme Court’s docket always includes a contingent of criminal
cases. However, most of these cases involve a federal constitutional challenge
to a state criminal conviction. Prior to the passage of the Fourteenth Amendment
in the wake of the Civil War, none of the federal constitution’s rights
for criminal defendants applied to state convictions. Even after the passage
of the Fourteenth Amendment, it wasn’t until well into the twentieth century
that the Supreme Court interpreted it as applying the Bill of Rights to the
- Richard H. Fallon Jr., Daniel J. Meltzer, and David L. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System, 5th ed. (Westbury,
NY: Foundation, 2003), 32. The Supreme Court could take jurisdiction in criminal
cases by issuing a writ of habeas corpus, although this was extremely rare.
- Peterson, “Notes on ‘Gadianton Masonry,'” 189.
- John W. Welch, memorandum to Daniel Peterson, 18 September 1989 (copy in
my possession) (“a lot of the older opinions are not on computer”).
- Mark D. Thomas, Digging in Cumorah: Reclaiming Book of Mormon Narratives
(Salt Lake City: Signature Books, 1999), 209-12.
- Ibid., 212.
- Ibid., 210-11.
- Ibid., 210.
- See Peterson, “Notes on ‘Gadianton Masonry,'” 191-93.
- Lawrence M. Friedman, A History of American Law, 2nd ed. (New York:
Simon and Schuster, 1985), 553: “The labor problem . . . was practically
speaking of major legal importance only after the Civil War.”
- People v. Melvin, Yates Selected Cases 112 (N.Y.Sup. 1809) (involving
an attempted strike by cordwainers).
- On 19 July 2002 I ran the search “DA(BEF 01/01/1830 & AFT 01/01/1820)
& COMBINATION!” in the NY-CS database on Westlaw, which for this period
includes reports from the state supreme court and the chancery court. The search
produced thirty-four opinions. Note that during the early nineteenth century
the high court of New York was called the supreme court, as opposed to the court
of appeals, as it is now known.
- Friedman, History of American Law, 322-25.
- Quoted in Peterson, “Notes on ‘Gadianton Masonry,'”
189, emphasis in original.
- On 18 July 2002, a search of the Westlaw ALLCASES-OLD database using the
search term “DA(BEF 01/01/1826) & COMBINATION! /S (FRAUD! CONSPIRI!)”
produced 154 opinions. This search would produce all cases in the database from
- McDonald v. Neilson, 2 Cow. 139, 179 (N.Y.Sup. 1823). For direct
quotations from court decisions, the first number represents the opening page
of the decision, and the second represents the cited page number. Occasionally,
I was unable to determine the exact pagination from the electronic versions
- State v. Buchanan, 5 H. & J. 317, 334 (Md. 1821).
- See McDonald v. Neilson, 2 Cow. 139 (N.Y. 1823); James v. Morey,
2 Cow. 246 (N.Y. 1823); Clark v. Henry, 2 Cow. 324 (N.Y. 1823); Henry
v. Davis & Clark, 7 Johns.Ch. 40 (N.Y.Ch. 1823); Bacon v. Bronson,
7 Johns.Ch. 194 (N.Y.Ch. 1823); Hadden v. Spader, 20 Johns. 554 (N.Y.
1822); Slee v. Bloom, 20 Johns. 669 (N.Y. 1822); Neilson v. McDonald,
6 Johns.Ch. 201 (N.Y.Ch. 1822); Star v. Ellis, 6 Johns.Ch. 393 (N.Y.Ch.
1822); Tiernan v. Wilson, 6 Johns.Ch. 411 (N.Y.Ch. 1822); Slee
v. Bloom, 5 Johns.Ch. 366 (N.Y.Ch. 1821); and Myers v. Bradford,
4 Johns.Ch. 434 (N.Y.Ch. 1820). Note that this list includes cases from both
the highest state law court and the highest state court of equity, which prior
to 1848 were separate. In Joseph Smith’s day, law and equity still occupied
different courts in the New York system.
- Cheriot v. Foussat, 3 Binn. 220 (Pa. 1810).
- Lazarus v. Bryson, 3 Binn. 54, 58 (Pa. 1810).
- Hollingsworth v. Seventy Doubloons & Three Small Pieces of Gold,
12 F.Cas. 380, 381 (D.C.Pa. 1820).
- Bradley v. Buford, 2 Ky. 12, 12 (Ky.App. 1801).
- Cheston v. Page’s Executors & Devisees, 4 H. & McH. 466,
480 (Md.Chan. 1799).
- Monroe v. Maples, 1 Root 553, 553 (Conn.Super. 1793).
- Spengler v. Snapp, 32 Va. 478, 487 (1834).
- Bibb v. Smith, 31 Ky. 580, 581 (Ky.App. 1833). The words omitted
by the ellipses are “between Smith and Allen.”
- Frisby v. Ballance, 5 Ill. 287, 298 (1843).
- Truesdell v. Callaway, 6 Mo. 605, 612 (1840).
- Duval v. Burtis, 9 Ky. 120 (Ky.App. 1819).
- Fellows v. Fellows, 4 Cow. 682 (N.Y.Sup. 1825).
- Wells v. Grant, 12 Tenn. 491, 494 (1833). Although the identity
of the secret combinations is not clear, from context the court seems to have
in mind combinations between debtors and creditors against sureties.
- Frankfort Bridge Company v. Williams, 39 Ky. 403, 405 (1840).
- Indeed, John W. Welch has argued that the Book of Mormon’s choice of the
word robbers to designate the Gadiantons draws on an ancient legal distinction
between outlaw bands and mere thieves. See his “Theft and Robbery in the Book
of Mormon and in Near Eastern Law” (FARMS paper, 1989). See also Thomas, Digging
in Cumorah, 196, who argues that Gadianton robbers were identified with
- The circuit court’s opinion is included in the introductory notes to the
intermediate court of appeals of South Carolina’s opinion in State v.
The Bank of South Carolina, 1 Speers 433 (S.C.Err. 1843). Because there
was doubtless some time between the decision of the circuit court and the
court of errors, the date of the circuit court may be earlier—for example,
1842; however, it is undated.
- Quinn, Early Mormonism and the Magic World View, 511-12 n. 216;
Vogel, “Echoes of Anti-Masonry,” 302.
- Vogel, “Echoes of Anti-Masonry,” 301.
- See Scott H. Faulring, ed., An American Prophet’s Record: The Diaries
and Journals of Joseph Smith (Salt Lake City: Signature Books, 1989),
321. See also Dallin H. Oaks, “The Suppression of the Nauvoo Expositor,” Utah
Law Review 9 (1964-1965): 862, 875 (which discusses Joseph Smith’s exposure
to Blackstone’s Commentaries in Nauvoo City Council meetings). By
the Nauvoo period, Joseph was deeply involved in quite complex civil litigation,
and it is unlikely that he would have escaped familiarity with at least some
technical legal terms. See Dallin H. Oaks and Joseph I. Bentley, “Joseph Smith
and Legal Process: In the Wake of the Steamboat Nauvoo,” Brigham Young
University Law Review 1976/3 (1976): 735 (which discusses in depth Joseph
Smith’s civil litigation in Nauvoo).
- Truman Madsen has noted: “Some of the verses [from section 132] describe
the conditions of the everlasting covenant in such terms as an attorney might
use who had spent days thinking up every possible synonym, nuance, and contingency
so that no loophole would remain.” Truman G. Madsen, Joseph Smith the
Prophet (Salt Lake City: Bookcraft, 1989), 22-23.
- However, it is worth noting in this regard that Joseph had had experience
with the law by 1826. In that year he was charged with being a “‘disorderly
person'” in connection with money-digging activities in Pennsylvania. See
Gordon A. Madsen, “Joseph Smith’s 1826 Trial: The Legal Setting,” BYU
Studies 30/2 (1990): 91.
- John Welch, however, has noted the existence of legal materials and legal
concepts in the Book of Mormon, although he identifies elements of ancient
Hebrew law, rather than early American jurisprudence. See John W. Welch, “Law
and War in the Book of Mormon,” in Warfare in the Book of Mormon,
ed. Stephen D. Ricks and William J. Hamblin (Salt Lake City: Deseret Book
and FARMS, 1990), 46-102; John W. Welch, “Lehi’s Last Will and Testament:
A Legal Approach,” in The Book of Mormon: Second Nephi, The Doctrinal
Structure, ed. Monte S. Nyman and Charles D. Tate Jr. (Provo, UT: BYU
Religious Studies Center, 1989), 61-82; John W. Welch, “Legal Perspectives
on the Slaying of Laban,” Journal of Book of Mormon Studies 1 (1992):
119-41; John W. Welch, “Law in the Book of Mormon: The Nephite Court Cases”
(FARMS paper, 1996); John W. Welch, “‘If a Man . . .': The Casuistic Law Form
in the Book of Mormon” (FARMS paper, 1987); John W. Welch, “Series of Laws
in the Book of Mormon” (FARMS paper, 1987); John W. Welch, “Judicial Process
in the Trial of Abinadi” (FARMS paper, 1981).
- David Franklin, “Pardon My Law French,” Greenbag (Summer 1999):
421. This article contains the following example of seventeenth-century law
French, which gives one some sense of its bizarre quality: “Richardson Chief
Justice de Common Banc al assises de Salisbury in Summer 1631 fuit assault
per prisoner la condemne pur felony, que puis son condemnation ject un brickbat
a le dit justice, que narrowly mist, et pur ceo immediately fuit indictment
drawn per Noy envers le prisoner et son dexter manus ampute et fix al gibbet,
sur que luy mesme immediatement hange in presence de Court.” Ibid. This kind
of tortured language led one distraught French diplomat to write in the time
of Elizabeth I that law French “may be worthily compared to some old ruines
of some faire building, where so many brambles and thorns are grown, that
scarecely it appeareth that ever there had bin any house.” Ibid.
- Franklin, “Pardon My Law French,” 421.
- “An action whereby the owner or person entitled to repossession of goods
or chattels may recover those goods or chattels from one who has wrongfully
. . . taken [them].” Black’s Law Dictionary, 6th ed. (St.
Paul, MN: West, 1990), 1299. For an example, see Henderson v. Ballantine,
4 Cow. 549 (N.Y.Sup. 1825) (a New York case from Joseph Smith’s period that
uses the term replevin).
- “In common-law practice, the action of trover . . . is a species
of action on the case, and originally lay for the recovery of damages against
a person who had found another’s goods and wrongfully converted them
to his own use.” Black’s, 1508. For an example, see Ex Parte Ward,
5 Cow. 20 (N.Y.Sup. 1825) (a New York case from Joseph Smith’s period that
uses the term trover).
- “Felonious stealing, taking and carrying, leading, riding, or driving away
another’s personal property, with intent to convert it or to deprive [the]
owner thereof.” Black’s, 881. For an example of such technical language,
see Mills v. McCoy, 4 Cow. 406 (N.Y.Sup. 1825) (a New York case from
Joseph Smith’s period that uses the term larceny).
- “An unlawful interference with one’s person, property, or rights.” Black’s,
1502. For an example, see Hodges v. Chace, 2 Wend. 248 (N.Y.Sup.
1829) (a New York case from Joseph Smith’s period that uses the term trespass).
- “The name given to a variety of writs . . . having for their object
to bring a party before a court or judge.” Black’s, 709. For an example,
see Ex parte Tayloe, 5 Cow. 39 (N.Y.Sup. 1825) (a New York case from
Joseph Smith’s period that uses the term habeas corpus).
- “A promise or engagement by which one person assumes or undertakes to do
some act or pay something to another.” Black’s, 122. For an example,
see Gourley v. Allen, 5 Cow. 644 (N.Y.Sup. 1825) (a New York case
from Joseph Smith’s day that uses the term assumpsit).
- “The nisi prius courts are such as are held for the trial of issues of fact
before a jury and one presiding judge.” Black’s, 1047. For an example,
see Flower v. Allen, 5 Cow. 654 (N.Y.Sup. 1825) (a New York case
from Joseph Smith’s period using the term nisi prius).
- The definition is attributed to the great seventeenth-century chief justice
Sir Edward Coke.
- Friedman, History of American Law, 322-25.
- Morton J. Horwitz, The Transformation of American Law, 1780-1860
(Cambridge: Harvard University Press, 1977), 28.
- Ibid., 141-43.
- See Merritt v. Brinkerhoff, 17 Johns. 306 (N.Y.Sup. 1820) (which
discusses the rights and duties of a mill owner vis-î-vis downstream
users of the millstream).
- People v. Anderson, 14 Johns. 294 (N.Y.Sup. 1817) (which discusses
what must be found by the jury in order to hold the accused guilty).
- Dexter v. Taber, 12 Johns. 239 (N.Y.Sup. 1815) (which discusses
the distinction between theft and trespass in the context of an allegedly
- For example, Vogel argues, “It is irrelevant what the phrase ‘secret
combinations’ meant in technical language at the time, even if it did
have a separate legal definition.” Vogel, “Echoes of Anti-Masonry,”
- See, for example, Smith v. Lusher, 5 Cow. 688 (N.Y.Sup. 1825) (referring
to “partners in trade”).
- See, for example, Seymour v. Ellison, 2 Cow. 13 (N.Y.Sup. 1823):
“His business was . . . very limited; affording him but a scanty
- See, for example, Friedman, History of American Law, 409 (which
discusses the rise of the West’s reporter system).
- Vogel, “Echoes of Anti-Masonry,” 301.
- Interestingly, Vogel’s earlier treatment of anti-Masonic readings
of the Book of Mormon is considerably more tentative and less strident than
his later response to critics. In 1989, he wrote, “Right or wrong, it’s
certain that Martin Harris and other early readers held anti-Masonic interpretations
of the Book of Mormon’s contents. How deep these went is not entirely
clear.” Vogel, “Mormonism’s ‘Anti-Masonick Bible,'”
28. In 2002, although he offers substantially the same evidence, Vogel wrote
more certainly that “Joseph Smith was aware of the Masonic connotation,
and his use of the phrase [secret combinations] was clearly intentional.”
Vogel, “Echoes of Anti-Masonry,” 300.
1 January 1826 in which any permutation of the word combination appeared in
the same sentence with any permutation of the words fraud or conspiracy. Thus
the search included terms such as conspiracies, conspirator, conspirators, frauds,
fraudulent, fraudulently, and so forth.