1 See generally Finke, Roger & Stark, Rodney, How the Upstart Sects Won America: 1776–1850, 28 Journal for the Scientific Study of Religion 27 (1989)CrossRefGoogle Scholar.

2 There are several excellent introductions to the origins and history of Mormonism. See generally Jan Shipps, Mormonism: The Story of a New Religious Tradition (1985); Matthew Bowman, The Mormon People: The Making of an American Faith (2012); Claudia L. Bushman & Richard L. Bushman, Building the Kingdom: A History of Mormons in America (2001); Richard L. Bushman, Joseph Smith and the Beginnings of Mormonism (1985); The Oxford handbook of Mormonism (Terryl L. Givens & Philip L. Barlow eds., 2015); Richard L. Bushman, Mormonism: A Very Short Introduction (2008).

3 Doctrine & Covenants of the Church of Jesus Christ of Latter-day Saints 20:1 (2013) (hereinafter D&C). The Church of Jesus Christ of Latter-day Saints accepts three volumes of scripture in addition to the Bible: The Book of Mormon, the Pearl of Great Price, and the Doctrine & Covenants. The latter is a collection of “revelations” published by Joseph Smith and his successors. In the modern edition, each revelation is designated as a numbered “section” with verses. The revelations in the D&C can have very complicated textual histories as they were often revised by Smith and his successors over a period of several years. Unless otherwise noted, all references are to section and verse numbers in the 2013 edition published by the LDS Church.

4 This is not the first article to take the approach of a case study of a church corporation as lens for examining disestablishment and its legacies. See generally Mensch, Elizabeth, Religion, Revival, and the Ruling Class: A Critical History of Trinity Church, 36 Buffalo Law Review 427 (1987)Google Scholar.

5 For discussion of the history of the first disestablishment, see Mark D. McGarvie, One Nation under Law: America's Early National Struggles to Separate Church and State (2004); Steven K. Green, The Second Disestablishment: Church and State in Nineteenth-Century America (2010); Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833 (Carl H. Esbeck & Jonathan J. Den Hartog eds., 2019); Philip Hamburger, Separation of Church and State (rev. ed. 2004); Sarah Barringer Gordon, The Landscape of Faith: Religious Property and Confiscation in the Early Republic, in Making Legal History: Essays in Honor of William E. Nelson 13–48 (Daniel J. Hulsebosch & R. B. Bernstein eds., 2013); Gordon, Sarah Barringer, The First Disestablishment: Limits on Church Power and Property before the Civil War, 162 University of Pennsylvania Law Review 307 (2014)Google Scholar; Cushing, John D., Notes on Disestablishment in Massachusetts, 1780–1833, 26 William & Mary Quarterly 169 (1969)CrossRefGoogle Scholar; Gordon, Sarah Barringer, The African Supplement: Religion, Race, and Corporate Law in Early National America, 72 William & Mary Quarterly 385 (2015)CrossRefGoogle Scholar.

6 “Reform” refers to the Calvinist as opposed to the Lutheran and Anglican wings of the Protestant Reformation. In its various permutations, it was arguably the dominant theological tradition in the early Republic. As one historian has remarked, “A substantial part of the history of theology in early America was an extended debate, stretching over more than two centuries, about the meaning and the truth of Calvinism.” E. Brooks Holifield, Theology in America: Christian Thought from the Age of the Puritans to the Civil War 10 (2003). Among other differences, the Reformed tradition tended to emphasize a congregational approach to ecclesiology at the expense of hierarchical authority. The most extreme version of this approach to church government emerged among New England Puritans: “The heart of the church theory was the church covenant. Regenerate men, the theory ran, acquire a liberty to observe God's commanding will, and when a company of them are met together and can satisfy each other that they are men of faith, they covenant together, and out of their compact create a church. Therefore each society is an autonomous unit, and no bishops and archbishops, no synods and assemblies, have any power, either from the Bible or from nature, to dictate to an independent and holy congregation.” Perry Miller, The New England Mind: The Seventeenth Century 435 (1983). Many of the particulars of Puritan ecclesiology were controversial within the Reformed tradition, but their emphasis on lay control and hostility to ecclesiastical hierarchy was typical.

7 See generally Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States (1784–1932) (1933) (recounting the legal controversies surrounding Catholic property and organizations in the United States during the nineteenth century); See also Gordon, The First Disestablishment, supra note 5, at 347–58 (recounting legal conflicts between lay Catholics and bishops over the control of parishes).

8 See, e.g., Carl H. Esbeck, Disestablishment in Virginia, 1776–1802, in Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833, at 139–80 (Carl H. Esbeck & Jonathan J. Den Hartog eds., 2019) (discussing the disincorporation of churches in Virginia).

9 See Klaus J. Hansen, Quest for Empire: The Political Kingdom of God and the Council of Fifty in Mormon History (1974) (arguing for the primacy of theocracy as a point of contention); Edwin Brown Firmage & Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (1988) (also arguing for the primacy of theocracy as a point of contention); Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002) (arguing for the primacy of polygamy as a point of contention); Robert Joseph Dwyer, The Gentile Comes to Utah: A Study of Religious and Social Conflict, 1862–1890 (1941) (discussing social, political, and legal tensions between Latter-day Saints and non-Mormons in territorial Utah).

10 See McGarvie, supra note 5, at 41.

11 See generally Jernegan, Marcus Wilson, The Development of Poor Relief in Colonial Virginia, 3 Social Service Review 1 (1929)CrossRefGoogle Scholar.

12 See Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw 29–42 (1957) (discussing the legal controversy over Unitarianism).

13 See generally Gordon, Sarah Barringer, Blasphemy and the Law of Religious Liberty in Nineteenth-Century America, 52 American Quarterly 682 (2000)CrossRefGoogle Scholar (discussing blasphemy laws and restrictions on religious speech).

14 U.S. Const. amend. I.

15 See Everson v. Board of Education, 330 U.S. 1 (1947) (incorporating the Establishment Clause against the states under the 14th Amendment); cf. Permoli v. City of New Orleans, 44 U.S. 589 (1845) (holding that the first amendment did not apply to the states).

16 See generally Gordon, The First Disestablishment, supra note 5.

17 Quoted in McGarvie, supra note 5, at 131.

18 See id. at 97–130 (recounting the story of disestablishment in New York); Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776–1787 (1977) (discussing disestablishment in Virginia).

19 See Gordon, The First Disestablishment, supra note 5, at 323.

20 See Ellis, Paul G. Kauper & Stephen C., Religious Corporations and the Law, 71 Michigan Law Review 1499 (1973)Google Scholar.

21 See Gordon, The First Disestablishment, supra note 5, at 330–35.

22 See id. at 334–35.

23 See Dignan, supra note 7, at 46–66 (discussing the Catholic experience).

24 See McGarvie, supra note 5, at 111.

25 See id. at 97–130; Mensch, supra note 4.

26 The so-called Duke's Laws promulgated immediately after the English takeover of New Amsterdam required local parishes to elect overseers who could then choose any ordained Protestant minister for the local church, who was paid from taxes collected by the local courts. This system was later codified in the 1693 Ministry Act, which decreed that in each parish “there shall be called, inducted, and established, a good sufficient Protestant Ministry.” Quoted in Mensch, supra note 4, at 444. The dispute over whether there was a single established church in the colony centered on whether this law, which was silent on the question, required that the minister be Anglican.

27 N.Y. Const. of 1777, art. XXXVIII.

28 Quoted in McGarvie, supra note 5, at 111.

29 See Act of Mar. 17, 1784, ch. 9, 1784 N.Y. Laws 597, 598 (removing taxing power from the Reformed Protestant Dutch Church of the City of New York); Act of Apr. 17, 1784, ch. 33, 1784 N.Y. Laws 646, 646 (removing taxing power from Trinity Church).

30 See Act of Apr. 6, 1784, ch. 18, 1784 N.Y. Laws 613 (“An Act to enable all the Religious Denominations in this State to appoint Trustees, who shall be a Body Corporate, for the Purpose for taking care of the Temporalities of their respective Congregations, and for other Purposes therein mentioned”).

31 See, e.g., David Keith Stott, Organizing the Church as a Religious Association in 1830, in Sustaining the Law: Joseph Smith's Legal Encounters 113–39 (Gordon A. Madsen, Jeffrey N. Walker, & John W. Welch eds., 2014); H. Michael Marquardt, An Appraisal of Manchester as Location for the Organization of the Church, Sunstone, Feb. 1992, at 49. Despite extensive searches by multiple researchers, no certificate filed with the county clerk to organize as a religious corporation, as required by the 1813 New York law, has ever been located in New York for Joseph Smith's Church of Christ. See Larry C. Porter, A Study of the Origins of the Church of Jesus Christ of Latter-day Saints in the States of New York and Pennsylvania, 1816–1833 155–60 (2000) (recounting an exhaustive archival search for the document). According to Marquardt, no legal organization was attempted in New York and the alleged incorporation was a later invention designed to fool creditors in Ohio. However, Marquardt, who is not a lawyer, fails to explain how an earlier incorporation would have frustrated collection efforts against the LDS Church or its officers in Ohio. Nor does his article point to any legal proceedings in Ohio in which the New York incorporation was invoked to shield Latter-day Saint debtors, although there were numerous collection actions brought against Joseph Smith in the wake of the failure of the Kirtland Safety Society.

32 D&C 20:1.

33 JSP, MRB:3–391 (reproducing the earliest extant version of what became D&C 20). The Joseph Smith Papers Project is in the process of publishing a scholarly edition of all of Joseph Smith's known papers. The volumes are divided into various series: Documents, Journals, Administrative Records, Revelations and Translations, Histories, Legal Records, and Financial Records. Following the convention in Mormon studies, I cite to documents with JSP followed by the series acronym, the volume number, and the page number.

34 See JSP, H1:364 (“<We> made known also to the <those> members who had already been baptized, that we had received commandment to organize the Church: and according to accordingly <we> met to [sic] together, <(being about 30 <six> in number) besides a number who were beleiving[sic]—met with us> on Tuesday the Sixth day of Aprile in the year of our A.D. A thousand & One thousand, Eight hundred and thirty . . . .”). In this passage from the JSP transcriptions, the angle brackets indicate interlinear insertions in the original document, and I reproduce the original strikeouts.

35 See Act of Apr. 5, 1813, ch. 60, sec. III, 1813 N.Y. Laws 212, 214 (stating that any church or religious society may “elect any number of discreet persons of their church, congregation or society, not less than three, nor exceeding nine in number, as trustees”). Notice that the number chosen by Smith, six, exactly splits the statutory range of 3 and 9.

36 David Keith Stott suggests that rather than trying to incorporate Smith and his associates were deliberately creating an unincorporated association. However, it is anachronistic to imagine that an unincorporated association was a particular legal status that would have been aimed at in the April 6, 1830, meeting. Unincorporated association was simply the default legal treatment for any religious group. Thus the nascent Mormon movement was already an unincorporated association prior to April 6, 1830. Stott reads subsequent references to being organized under New York law as referring to the deliberate invoking of unincorporated association as a distinct legal status, but all of the sources he cites that discuss unincorporated association in this way are from the second half of the nineteenth century, when ideas of corporate law were far more developed. The concept was not used this way in New York in the 1820s and 1830s.

37 David Whitmer, Mormonism, Kansas City Journal, June 5, 1881, at 1. It is worth noting that Whitmer was hostile to the retroactive alteration of earlier sources. A close early supporter of Joseph Smith, he objected to the increasing institutionalization of the Mormon movement and later broke with Joseph Smith in part over this issue. He was also scathing in his criticisms of retroactive editing of Smith's revelations. Nevertheless, in later reminiscences he insisted that a legal incorporation occurred on April 6, 1830. He was also the scribe who recorded the earliest extant copy of D&C 20, containing the “agreeable to the laws of our country” language. See JSP, MRB:3–391.

38 In addition, ordinary trusts could run afoul of the rule against perpetuities, which could make it impossible for a trust to survive for the benefit of later church members. This problem, however, could be circumvented through a so-called charitable trust, which lacks specific beneficiaries.

39 Under the terms of the agreement, Harris mortgaged his farm to finance the publication of the Book of Mormon and was then entitled to sell the Book of Mormon, to which Joseph Smith held the copyright, until the debt was repaid. Ultimately, Harris lost his farm, although he insisted that he eventually recouped his money through later sales of the Book of Mormon. See “Agreement with Martin Harris, 16 January 1830,” JSP, D1:104–108.

40 See D&C 5:14. See also Terryl L. Givens, Wrestling the Angel: The Foundations of Mormon Thought: Cosmos, God, Humanity 34–37 (2014) (discussing the use of the term “church” within the Mormon movement prior to the formal organization on April 6, 1830); D. Michael Quinn, The Mormon Hierarchy: Origins of Power 8 (1994) (same).

41 JSP, D1:368–77. See Scott H. Faulring, An Examination of the 1829 “Articles of the Church of Christ” in Relation to Section 20 of the Doctrine and Covenants, 43 BYU Studies 57, 57 (2004).

42 David Whitmer, An Address to All Believers in Christ 33 (1887).

43 See Givens, supra note 40, at 34–37; Terryl L. Givens, Feeding the Flock: The Foundations of Mormon Thought: Church and Praxis 22–23 (2017) (discussing the development of the idea of a church and its link to Joseph Smith's evolving covenant theology).

44 See Whitmer, supra note 42, at 33.

45 The seminal scholarly studies are D. Michael Quinn, Early Mormonism and the Magic World View (rev. 2d ed. 1998); Bushman, Joseph Smith and the Beginnings of Mormonism, supra note 2. While I use the term “folk magic” in the text, the term is deeply problematic as it lacks any clear meaning and has generally been used as a derogatory term for disfavored spiritual practices. See generally Randall G. Styers, Making Magic: Religion, Magic, and Science in the Modern World (2004). I choose to use the term because in the context of Joseph Smith's use of legal formalities, it is precisely the elite disdain and hostility conveyed by the term “magic” that is important. Other writers on Mormon history, however, have used alternative terms such as “cunning-folk traditions.” See Jonathan A. Stapley, The Power of Godliness: Mormon Liturgy and Cosmology 105 (2018); See also Samuel Morris Brown, Joseph Smith's Translation: The Words and Worlds of Early Mormonism 25 (2020) (discussing the terminological difficulties with “magic” in the Mormon context).

46 See Madsen, Gordon A., Joseph Smith's 1826 Trial: The Legal Setting, 30 BYU Studies Quarterly 91 (1990)Google Scholar; Hill, Marvin S., Joseph Smith and the 1826 Trial: New Evidence and New Difficulties, 12 BYU Studies Quarterly 223 (1972)Google Scholar.

47 See 1813 N.Y. Laws 114. Compare The Witchcraft Act 1735, 9 Geo. 2 c. 5, §IV (“[I]f any Person shall…use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost, may be found, every Person, so offending, being thereof lawfully convicted on Indictment or Information in that part of Great Britain called England, or on Indictment or Libel in that part of Great Britain called Scotland, shall, for every such Offence, suffer Imprisonment by the Space of one whole Year without Bail or Mainprize”). See also Christine A. Corcos, The Scrying Game: The First Amendment, the Rise of Spiritualism, and the State Prohibition and Regulation of the Crafty Sciences, 1848–1944, 38 Whittier Law Review 59, 72–76 (2017) (discussing the regulation of “crafty sciences” in the early Republic); L. Arthur Wilder, Legal Status of Seers and Necromancers, 21 Case & Comment 445 (1914) (discussing the legal regulation of folk magic in the United States).

48 Indeed, David Whitmer became increasingly disillusioned with Joseph Smith's revelations in part because he ceased to use his seer stone and simply spoke the revelations as a “mouthpiece.” See Whitmer, supra note 42, at 36.

49 N.Y. Dom. Rel. Law § 8(1) (1829) (amended 1888).

50 Palmyra Reflector (1830), reprinted in 2 Early Mormon Documents 237 (Dan Vogel ed., 1998).

51 N.Y. Tax Law § 4(8) (1829) (amended 1884).

52 Tellingly, on June 9, 1830, Joseph Smith and Oliver Cowdry issued written licenses “signifying & proveing that [the holder] is a Priest of this Church of Christ established & regularly Organized in these last days AD 1830 on the 6th. day of April.” JSP, D1:146–48. See generally Donald Q. Cannon, Licensing in the Early Church, 22 BYU Studies Quarterly 96 (1982). These seem to be the documents referred to by the Palmyra Reflector. Three licenses from the June 1830 conference survive. They belong to Joseph Smith, Sr., John Whitmer, and Christian Whitmer. Each references a different office. John Whitmer is “an Apostle of Jesus Christ, an Elder of this Church of Christ,” Christian Whitmer is “a Teacher,” and Joseph Smith Sr. is a “priest.” It is possible that the designation of a “priest” was done in part so that licenses would use the title contained in the New York tax statute. Other licenses issued at the June 1830 conference do not survive, but surviving documents suggest that a license as a “priest” was issued to Hyrum Smith, Joseph Smith's brother, who at the time had been assessed for taxes on a shop that he was renting. It is possible that he was the person who applied for tax exemption. E-mail from Mark Staker, Historical Department, The Church of Jesus Christ of Latter-day Saints, to Nathan B. Oman, William & Mary Law School (August 28, 2019) (copy in the author's possession). Unfortunately, other than the notice in the Palmyra Reflector, no other documents regarding this petition seem to have survived.

53 See generally Kim L. Loving, Ownership of the Kirtland Temple: Legends, Lies, and Misunderstandings, 30 Journal Mormon History 1 (2004).

54 Id. at 5.

55 Act of Feb. 5, 1819, ch. 54, 1818 Ohio Laws 120 (“An act for the incorporation of religious societies”).

56 Act of Jan. 3, 1825, § 1, 1824 Ohio Laws 9, 9 (“securing to religious societies a perpetuity of title to lands and tenements, conveyed in trust for meeting houses, burying grounds of residence for preachers”).

57 Id. § 2.

58 See Keyser v. Stansifer, 6 Ohio 363 (1834).

59 Years after Smith's death, the Reorganized Church of Jesus Christ of Latter-day Saints, now known as the Community of Christ, unsuccessfully brought suit to quiet title to the temple in an effort to establish itself as the legitimate successor to Smith's church. In the end, the court, after adopting a proposed finding of fact by the Reorganized Church's counsel as obitur dicta, denied relief on the grounds that the plaintiff was not in possession of the property. Eventually, the Reorganized Church quieted title by adverse possession. For many years, the leaders of the Reorganized Church claimed that the court in the Kirtland Temple Suit had declared the Reorganized Church of Jesus Christ of Latter-day Saints to be the legitimate successor to the Church of Jesus Christ of Latter-day Saints founded by Joseph Smith, Jr., although ultimately the Ohio court made no such holding. The litigation is recounted in detail in Loving, supra note 53. While the Church of Jesus Christ of Latter-day Saints did not participate in the litigation over the Kirtland Temple, members of the LDS Church eventually became aware of the Reorganized Church's legal claims and produced their own rebuttal. See Paul E. Reimann, The Reorganized Church and the Civil Courts (1961).

60 The 1824 statute was not raised in the litigation by the Reorganized Church. Its applicability to the LDS Church was first suggested by Jesse St. Cyr, Paper Delivered at the Mormon History Association: A Brief Corporate History of The Church of Jesus Christ of Latter-Day Saints, 1829–1901 (May 24, 2008) (on file with author).

61 On the Latter-day Saints efforts to create ideal communities, what they called Zion, see generally Leonard J. Arrington, Feramorz Y. Fox & Dean L. May, Building the City of God: Community and Cooperation among the Mormons (2nd ed. 1992).

62 The most extensive treatment of the United Firm can be found in Max H. Parkin, Joseph Smith and the United Firm: The Growth and Decline of the Church's First Master Plan of Business and Finance, Ohio and Missouri, 1832–1834, 46 BYU Studies Quarterly 5 (2007).

63 See id. at 13–14. Unfortunately, this document does not seem to have survived.

64 This business partnership found its way into Latter-day Saints scripture in a way that would have lasting effects on the movement. During his time in Kirtland, Smith received a number of revelations relating to the affairs of the United Firm. See D&C 78, D&C 82, D&C 92, D&C 104. See also Mark Lyman Staker, Hearken, O Ye People: The Historical Setting of Joseph Smith's Ohio Revelations 230–37 (2010) (discussing the context for some of these revelations). When these revelations were subsequently published, however, they were edited. The term “United Firm” was replaced with the term “united order,” and references to the Firm's “mercantile and publishing establishments” were changed to “the affairs of the storehouse of the poor.” See Parkin, supra note 62, at 37–53. Thus, what began as a series of revelations about a business partnership became a set of texts about a more cosmic and utopian scheme. Drawing on these texts a generation later, Brigham Young would use the term “united orders” for Latter-day Saints cooperatives aimed at establishing the autarky of the Great Basin Zion against the integrating force of American capitalism after the Civil War. See Leonard Arrington, Great Basin Kingdom: An Economic History of the Latter-Day Saints, 1830–1900 at 323–52 (1958) (recounting Brigham Young's efforts to create the “United Order of Enoch” in Utah territory). From there, the term “united order” has passed into Mormon thought and language as a shorthand reference to an ideal community marked by righteousness, economic egalitarianism, and cooperation for the common good. What began as a religiously directed business firm became central to Mormonism's utopian imagination.

65 See generally Staker, supra note 64, at 391–548; Marvin S. Hill, C. Keith Rooker & Larry T. Wimmer, The Kirtland Economy Revisited: A Market Critique of Sectarian Economics, 17 BYU Studies Quarterly 391 (1977).

66 See JSP, D5:299–306.

67 See JSP, D5:324–31. This was also when the “Kirtland Safety Society” was renamed the “Kirtland Safety Society Anti-Banking Company.”

68 See Jeffrey N. Walker, The Kirtland Safety Society and the Fraud of Grandison Newell: A Legal Examination, 54 BYU Studies Quarterly 32, 44–49 (2015). The Latter-day Saints also acquired a controlling interest in the Bank of Monroe, which was incorporated under Michigan law. They then set up the Kirtland Safety Society as a branch of the Michigan bank. Ohio law allowed “foreign” banks to operate branches in the state. This effort to circumvent Ohio's antibanking laws, however, proved ineffective when the Bank of Monroe was forced to close in the Panic of 1837. See id. at 50–57.

69 In 1816, Ohio passed “An act to prohibit the issuing and circulating of unauthorized bank paper.” Act of Jan. 27, 1816, ch. 355, 1815 Ohio Laws 904. Section 9 of the law provided that “all bonds, bills, notes, or contracts” of unincorporated banks “are hereby declared null and void.” Id. at § 9. However, sections 11 and section 12 of the act went on to declare that “every stockholder” and “the persons who were interested in such bank” were “jointly and severally answerable, in their individual capacity, for the whole amount of the bonds, bills, notes, and contracts of such bank.” See id. at §§ 11–12. The contradiction between these two sections left the enforceability of the Kirtland Safety Society notes in doubt. The uncertainty was further exacerbated by the fact that the validity of the 1816 law was itself open to doubt. In 1824, the Ohio legislature passed a further law that declared, “no action shall be brought upon any notes, or bills hereafter issued by any bank . . . unless such bank. . . . Shall be incorporated and authorized by the laws of this state to issue such bills and notes.” See Act of Jan. 28, 1824, §23, 1823 Ohio Laws 1422; See also Hill et. al., supra note 65, at 437–41 (discussing the effect of legal uncertainty on the value of Kirtland Safety Society paper).

70 See Walker, supra note 68, at 60–98 (recounting the litigation against Smith and his closest counselor, Sidney Rigdon).

71 Mo. Const. of 1820, art. XIII, §5.

72 See generally The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Merrill D. Peterson & Robert C. Vaughan eds., 1988).

73 Act of Jan. 24, 1799, ch. 246, 1798 Va. Acts 388.

74 See, e.g., McGarvie, supra note 5, at 131–51 (discussing general incorporation statutes for churches in South Carolina).

75 There are several excellent histories of the Latter-day Saint experience in Nauvoo. See Benjamin E. Park, Kingdom of Nauvoo: The Rise and Fall of a Religious Empire on the American Frontier (2020); Glen M. Leonard, Nauvoo: A Place of Peace,a People of Promise (2002); Robert Bruce Flanders, Nauvoo: Kingdom on the Mississippi (1975).

76 This story is recounted in detail in Jeffrey N. Walker, Losing Land Claims and the Missouri Conflict of 1838, in Sustaining the Law: Joseph Smith's Legal Encounters 247 (Gordon A. Madsen, Jeffrey N. Walker & John W. Welch eds., 2014).

77 See Leonard, supra note 75, at 47–61.

78 See JSP, D7: 534–38; see Leonard, supra note 75, at 58–59.

79 See JSP, D7: 472–88; James L. Kimball Jr., Protecting Nauvoo by Illinois Charter in 1840, in Sustaining the Law: Joseph Smith's Legal Encounters 297 (Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch eds., 2014).

80 See JSP, D7: 450–55.

81 Id. at 454.

82 Id.

83 Id.

84 Procedurally, the state Senate approved an amendment that completely deleted the content of the bill, replacing it with a proposal that the governor appoint a notary public for Nauvoo. This amended bill was then passed. See id. at 452.

85 This is the explanation offered by the Joseph Smith Papers Project, which first published the bill. See id. at 453–54.

86 Act of Feb. 6, 1835, 1834 Ill. Laws 559, 559 (“An Act concerning Religious Societies”). Earlier scholars have suggested that during his life-time Joseph Smith and his associates were unaware of the restrictions on the ability of church corporations to own more than five acres (later increased to ten acres) under Illinois law. See Dallin H. Oaks & Joseph I. Bentley, Joseph Smith and Legal Process: In the Wake of the Steamboat Nauvoo, 1976 Brigham Young University Law Review 735–82, at 776 (1976) (“There is no evidence that Joseph Smith or other Church leaders were ever aware of this 10-acre limitation on Church ownership of land.”). However, Oaks and Bentley wrote prior to the discovery of the proposed incorporation by special statute. If one assumes that this statute was deliberately drafted, then it suggests that as early as 1840, Joseph Smith and his associates were likely aware of the mortmain provision in the Illinois general incorporation statute.

87 Act of Feb. 28, 1845, 1844 Ill. Laws 604, 604. That act had to be further amended in 1847 to allow churches to sell certain real property. See Act of Feb. 28, 1847, 1846 Ill. Laws 25, 25. While not directly applicable to all property that a church might own, these laws illustrate the assumption that the power of religious corporations to use or dispose of real property was limited.

88 Act of Mar. 27, 1801, ch. 79, 1801 N.Y. Laws 161, 164 (comprehensive “An act to provide for the incorporation of religious societies” establishing $3000 maximum annual income for all churches except the Reformed Protestant Dutch Church in New York City and the First Presbyterian Church in New York City); Act of Apr. 5, 1813, ch. 60, 1813 N.Y. Laws 212, 215 (revised “Act to provide for the Incorporation of Religious Societies” reiterating $3000 maximum annual income for all churches except the two exempted by the 1801 Act and further exempting St. George's Episcopal Church of New York and the Reformed Protestant Dutch Church of Albany from the limit).

89 See Act of Mar. 27, 1801, ch. 79, 1801 N.Y. Laws 161, 164 (Reformed Protestant Dutch Church in New York City could lease property up to $9000 in value and the First Presbyterian Church in New York City, up to $6000); Act of Apr. 5, 1813, ch. 60, 1813 N.Y. Laws 212, 215 (same exceptions as the 1801 Act, as well as allowances for St. George's Episcopal Church of New York to hold up to $6000 worth of property and the Reformed Protestant Dutch Church of Albany to hold up to $10,000). See also Act of Mar. 5, 1819, ch. 33, § 3, 1819 N.Y. Laws 34, 34 (all churches in New York City were permitted an annual income of $6000).

90 By the early nineteenth century, much of the Revolutionary era hostility to Episcopal tension in New York has dissipated, in part because of Alexander Hamilton's successful attack on anti-Tory confiscation statutes, which among other things were aimed at Trinity Church, before the state courts immediately after the Revolution. See Mensch, supra note 4, at 475–76.

91 Act of Feb. 6, 1835, 1834 Ill. Laws 147, 147 (“Act concerning Religious Societies”).

92 “Appointment as Trustee, 2 February 1841,” Hancock County Bonds and Mortgages, vol. 1, p. 95, https://www.josephsmithpapers.org/paper-summary/appointment-as-trustee-2february-1841/1 (accessed July 16, 2020). This document has not yet been published by the Joseph Smith Papers Project, but a photograph and transcript are available online through the JSP website.

93 At the heart of this ecclesiology were temple rituals and the developing idea of “priesthood keys,” both of which tended to centralize authority within the highest councils of the LDS Church rather than in the membership. See, e.g., Stapley, supra note 45, at 34–56 (discussing the development of Mormon ideas of priesthood and the liturgy associated with the temple).

94 Act of Feb. 6, 1835, 1834 Ill. Laws 147, 149.

95 Dower is a common-law doctrine giving a widow the right during her lifetime to occupy some portion of the real property owned by her husband upon his death. Traditionally, the common law did not allow the husband to extinguish these rights unilaterally.

96 See Samuel D. Brunson, Mormon Profit: Brigham Young, Tithing, and the Bureau of Internal Revenue, 2019 Brigham Young University Law Review 41, 43 n.7 (2019) (“The term ‘trustee-in-trust’ seems to have been unique to Mormonism.”); Loving, supra note 53, at 11 (speculating that the term “trustee-in-trust” in both the Church of Jesus Christ of Latter-day Saints and the Recognized Church of Jesus Christ of Latter-day Saints context referred to the religious rather than a legal office).

97 Interestingly, the term is used by both the Church of Jesus Christ of Latter-day Saints and the Community of Christ, formerly the Reorganized Church of Jesus Christ of Latter-day Saints. No non-Mormon denominations use the term.

98 See, e.g., Incorporation of Churches and Religious Societies, ch. 73, 1903 Utah Laws 62, 62 (allowing a “bishop, president, trustee in trust, [or] president of stake” to organize as a corporation sole). See also text accompanying infra notes 147–49. In the succession crisis after the murder of Joseph Smith in 1844, the office of trustee-in-trust proved important. At the time of his death, there were a half dozen or more different theories about who was to succeed him as leader of the LDS Church. See generally D. Michael Quinn, The Mormon Succession Crisis of 1844, 16 BYU Studies 187 (1976). Ultimately, Brigham Young and the Quorum of the Twelve persuaded the bulk of the Latter-day Saints to accept their claim to carry forward Smith's work. However, while Young and the Twelve succeeded in defeating the claims of Smith's counselor, Sidney Rigdon, at a conference in August 1844, it was not until December 27, 1847, that the First Presidency, the senior governing council of the LDS Church, was formally reorganized. See Ronald W. Walker, Six Days in August: Brigham Young and the Succession Crisis of 1844, in A Firm Foundation: Church Organization and Administration 161 (David J. Whittaker & Arnold K. Garr eds., 2011); Quinn, supra. While Brigham Young was signing letters as “Prest. of the Church of L.D.S.” as early as December 1844, his precise ecclesiastical authority beyond his undoubted title as president of the Quorum of the Twelve Apostles, a secondary governing council, remained ambiguous for over three years. See id. at 216. However, the office of trustee-in-trust allowed Young and the Quorum of the Twelve to gain control of LDS Church assets without resolving the question of their precise ecclesiastical authority. Likely based on the certificate of incorporation filed by Joseph Smith, at his death many Latter-day Saints, including his widow, Emma Smith, assumed that only the president of the LDS Church could act as trustee-in-trust. Young and his associates, however, rejected this position, and they succeeded in having a series of loyal, lesser church officials appointed to this office. Brigham Young thus used the office of trustee-in-trust to control LDS Church assets prior to settling the precise nature of the succession to the First Presidency.

99 See Oaks & Bentley, supra note 86.

100 Prior to 1898, the United States had no permanent bankruptcy legislation. Rather, Congress periodically passed bankruptcy laws in response to financial down turns only to repeal them a few years later. See David A. Skeel, Debt's Dominion: A History of Bankruptcy Law in America (2004).

101 See Dale Morgan, The State of Deseret 185 (1987) (reproducing the statute).

102 Id. at 186.

103 Id. at 186.

104 Id.

105 Joint Resolution Legalizing the Laws of the Provisional Government of the State of Deseret, 1851 Utah Laws 205.

106 Morill Anti-Bigamy Act, ch. 126, 12 Stat. 501 (1862), amended by Edmunds Anti-Polygamy Act of 1882, 22 Stat. 30b (1882).

107 Id. § 1.

108 Id. § 2.

109 Id.

110 Id. § 3.

111 Cong. Globe, 37th Cong., 2d. Sess. 2506 (1862) (statement of Sen. Bayard).

112 Id.

113 Cong. Globe, 37th Cong., 2d. Sess. 2906 (1862) (statement of Rep. Morrill).

114 See Leonard J. Arrington, The Settlement of the Brigham Young Estate, 1877–1879, 21 Pacific Historical Review 1 (1952).

115 See Ken Driggs, “Lawyers of Their Own to Defend Them”: The Legal Career of Franklin Snyder Richards, 21 Journal of Mormon History 84, 104 (1995).

116 Act of Feb. 22, 1878, ch. 18, § 1, 1878 Utah Laws 46 (“Act supplemental to An Act providing for Incorporating Associations for Mining, Manufacturing, Commercial and other Industrial Pursuits”).

117 Id. § 3. The 1878 statute was silent on many issues and there was never any case law construing it. Still, one may speculate about the legal risks in Richards's proposal. First, relatively complex corporate formalities had to be maintained, or the wards and stakes may have risked losing their corporate existence. Second, the acquisition and transfer of property required that the complex internal governance procedures of the corporations be followed, lest the transfers be subject to later challenges. Third, upon the death or release of ward or stake officers serving as corporate trustees, relatively complex legal formalities had to be observed to replace them. Finally, because the corporations were self-governing entities, the LDS Church hierarchy risked losing control over LDS Church property if enough local congregants wished to go their own way. All of these factors likely contributed to John Taylor's hesitancy in forming such corporations in the early 1880s, and his insistence that the governing board of trustees be as large as possible under then existing Utah law, likely reflected concern about concentrating power over LDS Church property in the hands of local leaders. See Franklin S. Richards, “Reminiscences,” Church History Library, Salt Lake City, Utah (discussing Taylor's response to the proposal). Records of these local corporations housed in the LDS Church archives reveal relatively complex minutes and procedures, and efforts by LDS Church headquarters to assist with the legal formalities by producing preprinted articles of incorporations for use by wards and stakes. See, e.g., By-Laws of the Corporation of the Members of the Church of Jesus Christ of Latter-day Saints, residing in the Panguitch second ecclesiastical Ward of the Panguitch Stake of Zion, Church History Library, Salt Lake City, Utah (a preprinted set of by-laws for ward corporation).

118 Edmunds-Tucker Act, ch. 397, 24 Stat. 635 (1887) (repealed 1978).

119 18 Cong. Rec. 584 (1887) (statement of Rep. Taylor).

120 18 Cong. Rec. 593 (1887) (statement of Rep. Tucker).

121 Furthermore, according to Tucker, because territories were governed by Congress, they were subject to the full force of the Establishment Clause of the First Amendment, unlike state governments. He thus saw the Edmunds-Tucker Act as implementing the Establishment Clause. See id. at 595 (statement of Rep. Tucker).

122 Id. at 594 (statement of Rep. Tucker). Tucker's Virginia-centric view of the issues was not accidental. He was the scion of an important Virginia legal family. His grandfather was St. George Tucker, Professor of Law at the College of William & Mary, and the author of a highly influential edition of Blackstone's Commentaries. John Tucker served as attorney general of Virginia under the Confederacy and later became a professor of constitutional law at Washington and Lee Law School. See John W. Davis, John Randolph Tucker: The Man and His Work, 6 Washington and Lee Law Review 139 (1949).

123 John Randolph Tucker, Constitution of the United States: A Critical Discussion of Its Genesis, Development, and Interpretation 668 (Henry St. George Tucker ed., 1899).

124 See Herbert Hovenkamp, Enterprise and American Law, 1836–1937, at 11–67 (2013) (discussing the rise of the business corporation after the Civil War).

125 49 Cong. Rec. 594 (1887) (statement of Rep. Tucker).

126 See Richards, supra note 117.

127 See id.

128 See United States v. Church of Jesus Christ of Latter-day Saints, 5 Utah 361, 369 (Utah 1887) (rejecting the argument based on Dartmouth College); See also Richards, supra note 117.

129 See id.

130 18 Cong. Rec. 1898 (1887) (statement of Sen. Edmunds).

131 See United States v. Church of Jesus Christ of Latter-day Saints, 15 P. 473 (Utah 1887); Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890).

132 Late Corporation, 136 U.S. at 67–68 (Fuller, C.J. dissenting).

133 See Late Corporation, 136 U.S. at 66. See also Driggs, supra note 115 (discussing the relationship between the Supreme Court's decision and the Manifesto).

134 See United States v. Late Corporation of the Church of Jesus Christ of Latter-day Saints, 8 Utah 310 (1892).

135 See Utah Rev. Stat. tit. 11, ch. 1, §§ 343–46 (1898).

136 See generally Franklin S. Richards, “Corporations and Land Titles,” Memorandum to the Presiding Bishop and the First Presidency, Nov. 2, 1931, Church History Library, Salt Lake City, Utah.

137 See generally F. W. Maitland, Corporation Sole, 17 Law Quarterly Review 335 (1900) (discussing the history of the corporation sole); M. W. S., The Corporation Sole, 5 Michigan Law Review 545 (1928) (discussing the corporation sole under American law).

138 See Dignan, supra note 7, at 215–16 (discussing the passage of such laws in the context of Catholic bishops’ search for a method of holding property under American law that was consistent with Roman Catholic Canon Law).

139 Quoted in id. at 223.

140 See General Laws of the State of Idaho 24 (1895) (reproducing the text of the statute).

141 Church and Charitable Incorporations § 2, ch. 80, 1901 Utah Laws 78. Somewhat confusingly, among Latter-day Saints a “bishop” is the leader of a local congregation or ward, while the leader of a stake, who is analogous to a Catholic bishop, is called a “stake president.”

142 Franklin S. Richards, “Corporations and Land Titles,” Memorandum to the Presiding Bishop and the First Presidency, Nov. 2, 1931, Church History Library, Salt Lake City, Utah.

143 See Church and Charitable Incorporations; See also Andrew Jenson, Wells, Rulon Seymour, in 1 Latter-day Saint Biographical Encyclopedia 212 (1901).

144 Church and Charitable Incorporations § 2.

145 Id. at § 4.

146 See Incorporation of Churches and Religious Societies, ch. 73, 1903 Utah Laws 62. While Richards did not explicitly claim authorship of the 1903 law, he did claim authorship of the 1901 law. See Franklin S. Richards, “Corporations and Land Titles,” Memorandum to the Presiding Bishop and the First Presidency, Nov. 2, 1931, Church History Library, Salt Lake City, Utah. There is, however, very good reason to suppose that the 1903 law was authored and introduced in the state legislature at his request. The law was introduced by William Newjent Williams, an English convert to the LDS Church who was married to Clarissa W. Smith, a daughter of apostle and counselor to Brigham Young, George A. Smith. Williams served as a missionary in Australia and at the time he introduced the law was a high priest. Clarissa was the treasurer of the LDS Church's Relief Society. In short, he was precisely the kind of loyal and well-connected Latter-day Saint that the LDS Church would have used to get the law introduced. It was passed unanimously by the legislature. See Senate Journal, 5th Sess., at 160 (Utah 1903); Biographical Record of Salt Lake City and Vicinity 279–81 (1902).

147 Incorporation of Churches and Religious Societies § 2.

148 Id. § 9.

149 See Church of Jesus Christ of Latter-day Saints, Annual Instructions to Presidents of Stakes and Counselors, High Counselors, Bishops and Counselors and Stake Tithing Clerks of Zion 10–12 (1903).

150 Church of Jesus Christ of Latter-day Saints, Annual Instructions to Presidents of Stakes and Counselors, Bishops and Counselors Stake Clerks and General Authorities of Zion 14–15 (1906).

151 See Nathan B. Oman, Salt, Smurthwaite, and Smith: Litigation and the Legal Identity of the Church of Jesus Christ of Latter-day Saints, Journal of Mormon History, Jan. 2022 (forthcoming). Smurthwaite was joined in his suit by Don Carlos Musser, the scion of a prominent Mormon family. The origins of their disaffection were complicated. Both men objected to the LDS Church's political and economic influence, as well the practice of polygamists continuing to live with plural families after the Manifesto. In addition, Smurthwaite's salt business was in direct competition with a LDS Church-owned enterprise.

152 Id.

153 Id.

154 Id.

155 Id.

156 Id.

157 Id.

158 See generally Kathleen Flake, The Politics of American Religious Identity: The Seating of Senator Reed Smoot, Mormon Apostle (2004).

159 See Proceedings Before the Committee on Privileges and Elections of the United States Senate in the Matter of the Protests Against the Right of Hon. Reed Smoot, a Senator from the State of Utah, to Hold His Seat, 59th Cong. (1906) 4:78–103 (hearings on the Smurthwaite case before the Senate Committee on Privileges and Elections).

160 See generally Gordon, The First Disestablishment, supra note 5; Kellen Funk, Church Corporations and the Conflict of Laws in Antebellum America, 32 Journal of Law and Religion 263 (2017).

161 See Franklin S. Richards, “Corporations and Land Titles,” Memorandum to the Presiding Bishop and the First Presidency, Nov. 2, 1931, Church History Library, Salt Lake City, Utah.

162 See id.

163 In 2019, the Corporation of the President was merged into the Corporation of the Presiding Bishop, which has been renamed The Church of Jesus Christ of Latter-day Saints. See Human Resources Department, The Church of Jesus Christ of Latter-day Saints, “Further Changes to Emphasize the Correct Name of the Church of Jesus Christ,” June 19, 2019 (e-mail in the author's possession). Thus, for the first time since 1862, there is a legal entity bearing that name. However, The Church of Jesus Christ of Latter-day Saints as a legal matter remains a corporation sole, meaning that as of 2019 it has but a single member, church president Russell M. Nelson who became the incumbent of the corporations after the merger. This odd structure is a legacy of Mormonism's effort to find a legal structure less infected with Reform ecclesiology than that which was on offer in the legal world in which it was born.

164 See Church of Jesus Christ of Latter-day Saints, Annual Instructions, 1909 28 (1909).

165 See Church of Jesus Christ of Latter-day Saints, Annual Instructions to Presidents of Stakes and Counselors, Bishops and Counselors Stake Clerks and General Authorities of Zion 33 (1910).

166 See Church of Jesus Christ of Latter-day Saints, Handbook of Instructions for Bishops and Counselors Stake and Ward Clerks 57–58 (1928).

167 See Church of Jesus Christ of Latter-day Saints, Handbook of Instructions for Bishops and Counselors Stake and Ward Clerks 57 (1928) (“In some states, such as California, Colorado, New Mexico, Oregon, Montana, and a number of others, titles may be held by the ‘Corporation of the Presiding Bishop’ under varying conditions.”).

168 The 1963 edition of the handbook issued to bishops and stake presidents is the last one to include specific instructions about local church corporations sole. See Church of Jesus Christ of Latter-day Saints, General Handbook of Instructions 93 (1963).

169 See generally Oman, Nathan B., International Legal Experience and the Mormon Theology of the State, 1945–2012, 100 Iowa Law Review 715 (2015)Google Scholar.

170 See Church of Jesus Christ of Latter-day Saints, Circular of Instructions 44 (1913) (“Title to mission property should be vested in the name of Joseph F. Smith, Trustee-in-Trust for the Church of Jesus Christ of Latter-day Saints, except in countries where a foreign trustee is barred by statute.”).

171 See Constitución Política de los Estados Unidos Mexicanos art. 27(I), Diario Oficial de la Federación [DOF] 05-02-1917, últimas reformas DOF 20-12-2019 (Mex.) (“For no reason may foreigners acquire the direct ownership of lands or waters within a zone of one hundred kilometers along the frontiers and of fifty along the shores.”).

172 Signet, William D., Grading a Revolution: 100 Years of Mexican Land Reform, 16 Law & Business Review of the Americas 481, 487–93 (2010)Google Scholar.