Of late I have been doing research on the resolution of civil disputes — tort, contract, and property cases — in ecclesiastical courts. Of course there are still religious communities that handle all intra-member litigation “in house.” I am surprised, however, how common this was among Americans in the 17th, 18th, and 19th centuries. It turns out that many American denominations are descended from either Calvinists or Anabaptists. Despite various nasty theological disputes in the 16th century, both groups were enthusiastic about the idea of church discipline and thought that one of the things that true Christian churches needed to do was excommunicate members who misbehaved. It was only a hop, skip, and a jump from this basic commitment to discipling members to a literal reading of passages in Matthew and Paul’s Letters to the Corinthians where the New Testament insists that disputes between brethren ought to be brought before the church rather than being taken before the ungodly. The result is that groups like the Quakers, the early Baptists, and the Mormons were all at one time or another quite aggressive about disciplining church members who sued other church members in secular court. However, rather than simply punishing members for hiring a lawyer, these disciplinary proceedings became a way in which congregations took jurisdiction over the underlying dispute, provding an ultimate settlement on the merits.
I wonder, however, if there was something more than theology and the perennial quest for low-cost dispute resolution at issue here. In particular, early Americans seem to have been a litigious lot. Roger Williams, for example, described one of his neighbors as “the salamander always delighting to live in the fire of contention as witnesses his several suits in law.” (In the folk cosmology of early America, the salamander was a creature that could live the heart of a fire.) Many of his compatriots seems to have shared this trait. That being the case, litigation was, if not a major life activity for many early Americans, at the very least was a very significant one. By shifting the forum in which this activity occurred from secular to ecclesiastical courts, religious groups were able create yet another bond with their members. Home is not only where the heart it. It is also where you litigate, particularlly if you are a salamander.
Finally, there seems to have been theatrical component to the interaction between litigation and religion. Brigham Young, for example, delivered a facinating sermon in 1856 denouncing litigation not only for the way in which it created discord among litigants but also as a demoralizing spectacle that tempted people to the courthouse to watch the show. Indeed, his denunciation of litigation sounds in many ways like contemporary denunciations of the theatre by Evangelical Protestants. The Mormon reaction to courts was much like the Mormon reaction to theatres (or dancing, another moral bugbear of the Second Great Awakening): rather than prohibiting it, they brought it in-house. Hence, dances were held in temples and church houses, plays were sponsored by ecclesiastical associations, and litigation was brought before “judges in Israel.” Once within the religious fold, however, litigation continued to be a spectacle and a show. Religious groups, however, radically changed the moral content of the performance. The amoral tourney of wits between trickster lawyers was transformed into a passion play of confession, repentance, and reconciliation as parties in ecclesiastical cases were frequently required as part of their settlements to perform acts of public atonement before their congregations.