Although the Prophet Joseph Smith’s Dec. 23 birthday is appropriately overshadowed by the celebration of Christmas, it’s also appropriate to reflect briefly on his life and contributions. Happily, a recently published article — John S. Dinger's “Judge Joseph Smith and the Expansion of the Legal Rights of Women: The Dana v. Brink Trial,” in the Journal of Mormon History, Vol. 42, No. 4, October 2016 — opens a fresh window on him.
We’re accustomed to think of Joseph, who founded The Church of Jesus Christ of Latter-day Saints, as seer, church leader, victim of persecution and martyr. Now we can appreciate what Joseph Smith’s performance as a secular judge tells us about him.
In October 1842, Margaret Dana was expecting her seventh child. Her previous pregnancies had gone well, and she anticipated a routine delivery by the respected Nauvoo midwife Patty Sessions in November. On Oct. 22, though, Dana became ill with pain, fever and diarrhea. Dr. William Brink was summoned, not to deliver the baby but to help with the mother’s illness. However, after a painful internal examination, Brink determined that Margaret’s baby was dead and improperly positioned, that her water had broken, and that he needed to induce labor.
Arriving shortly thereafter, Sessions also examined Dana, correctly concluding that her water wasn’t broken, that the baby was properly positioned and, most importantly, quite alive. She also found, however, that Brink’s internal examination had left the patient lacerated. A small, premature boy was delivered, but Dana endured incontinence and pain for the rest of her life.
In early 19th-century America, marriage wasn’t an equal partnership. Under a concept derived from English common law and known as “coverture,” a woman’s legal identity merged, upon marriage, with her husband’s. Thus, a wife could not bring a lawsuit. Even if she were injured, any suit needed to be filed by her husband. In most cases, she couldn’t even testify. (Likewise, she couldn’t independently own property or enter into a contract.)
Accordingly, after trying privately to resolve the matter with Brink, Charles Dana eventually sued the physician. The case was tried in the Nauvoo Mayor’s Court on March 2-3, 1843. Two attorneys represented the plaintiff and two (including Sidney Rigdon) represented the defendant. Joseph Smith presided, with Orson Spencer serving as “side justice” or assistant judge.
Happily, Willard Richards, a practicing physician who served as Joseph Smith’s scribe and as a member of the Quorum of the Twelve Apostles, kept a record of the trial proceedings. I offer a few highlights as shared in the article.
Plaintiff’s counsel intended to call various physicians to comment upon witness descriptions of Brink’s treatment of Margaret Dana, but Rigdon insisted that such descriptions be given privately. After some hesitation, Joseph Smith ruled against Rigdon, allowing the other physicians to remain in the room. “With this,” writes Dinger, “Smith made a forward-thinking legal rule that other courts eventually adopted.”
At another point, contending that a wife had no legal standing, defense counsel objected when the plaintiff’s attorneys called Margaret Dana herself to testify. However, citing Blackstone’s “Commentaries on the Laws of England” and “Phillipps and Amos’s Treatise” in what Dinger describes as “a new way of applying the law” that “had not commonly been done in the courts of the day,” Joseph Smith overruled their objection.
After the trial, Joseph spent several days working on his formal decision, which was eventually published in a Nauvoo newspaper. Finding Brink negligent and incompetent, he granted damages to the plaintiff in the amount of $99, the maximum allowed under the law. Strikingly, the decision relies heavily upon the testimony of Prudence Miles, Mary Duel, Sessions and Margaret Dana.
Brink appealed thereafter to the Nauvoo Municipal Court, which declined jurisdiction, and then to the Circuit Court of Hancock County, which, though it reduced Charles Dana’s award from $99 to $75, upheld Joseph Smith’s decision as correct.
“Joseph Smith,” summarizes Dinger, “made important and forward-thinking decisions on topics including the legal status of women, their ability to testify in a civil suit and an exception to coverture.
“The decisions he made in Dana v. Brink were progressive regarding the legal status of women in a trial," Dinger writes. "His crafting of an exception to the common law doctrine of coverture and allowing a wife to testify in trial is significant and shows great ability as a judge.”
For medical-historical background, see Steven C. Dinger's “‘The Doctors in This Region Don’t Know Much’: Medicine and Obstetrics in Mormon Nauvoo,” Journal of Mormon History 42/4 (October 2016): 51-68.
Daniel Peterson teaches Arabic studies, founded BYU’s Middle Eastern Texts Initiative, directs MormonScholarsTestify.org, chairs mormoninterpreter.com, blogs daily at patheos.com/blogs/danpeterson, and speaks only for himself.