THE LAWS UNDER THE JUDGES--THE VOICE OF THE PEOPLE--ELECTIONS--RIGHTS
OF THE PEOPLE--CHURCH AND STATE--THE CRIMINAL PROCEDURE.
We next enter into the consideration of the law as it existed under the
Judges, gathering our information from various passages in which it is
directly referred to, or wherein some historical incident is narrated
which throws light on its powers and manner of execution.
From the death of king Mosiah II. (B. C. 91), the governmental
authority was vested in a chief judge and other subordinate judges
and officers, all of whom were elected by the voice of the people,
to judge according to the laws which had been given to and accepted
by the people. Their authority was defined by the law (the code of
Mosiah), but within the bounds therein prescribed they appear to have
held unrestricted powers. This was especially so in the case of the
chief judge. No civil council or parliament divided with the chief
executive the authority to make war or conclude peace, to decide the
terms of treaties, or frame enactments for the regulation of public
affairs. No direct statement is made of the length of the term that a
judge remained in office, but from the historical narrative we gather
the idea that he was elected for life or during good conduct. We have
instances of judges resigning, but none of their removal by the people
because their term of office had expired. Each city or land appears to
have had its chief judge or ruler as well as its inferior magistrates,
all of whom were responsible to the chief judge of the whole nation,
whose seat of government was located in the Nephite capital, Zarahemla,
when the city was not in the hands of Lamanites or traitors.
The manner of conducting elections is not clearly defined. The result
is always spoken of as the voice of the people. The mode of procedure
was uniform, that is, it was the same throughout the land. In the
election of the first chief judge (Alma the younger), the people
assembled in bodies throughout all the land to cast in their voices,
which conveys the impression that they declared their choice _viva
voce_, or by acclamation rather than by lot or ballot. It is quite
possible that the methods were entirely dissimilar to any known at
modern elections; this, however, is but conjecture.
When the sentiments of the people were greatly divided and party
feeling ran high, the opposing factions assembled in separate bodies
throughout the land to cast in their voices, as in the attempt to make
Amlici king. The decisions of the people in these assemblies or mass
meetings were laid before the judges, who proclaimed the result. In
cases where the petition was made for any particular object, or for a
change in the law, the judge directed that a special election (if we
may so term it) be held, and the results were proclaimed according to
the voice of the people, as a whole, or if they were divided, according
to the voice of the majority.
Under the code of Mosiah, the judges received wages according to the
time which they labored to judge those who were brought before them;
and their wages were a senine of gold, or its equivalent a senum of
silver, for each day that they were thus employed. As the Nephites
had changed the names and values of their coins from the old Hebrew
standards, we have no direct way of judging from the record how
liberally these officers were remunerated. Lawyers, also, were hired
and appointed by the people to administer the law at the time of their
trials; it is presumable that these acted in behalf of the republic
somewhat in the capacity of prosecuting attorneys in the United States.
If trial by jury was in vogue among the Nephites, we have not been able
to find any reference to that method; indeed the evidence is altogether
in favor of the idea that the judge decided as to the guilt or
innocence of the accused, and, if adjudged guilty, passed sentence on
the culprit. The corruption of these lawyers and judges early became,
in some portions of the land, a foundation for the destruction of the
government.
When the chief judge was elected he took an oath of office, and it is
presumable that the lesser officers did the same. The nature of that
oath can be easily understood by referring to the case of Pahoran. He
was appointed chief judge and governor over the people, with an oath
and sacred ordinance to judge righteously, and to keep the peace, and
the freedom of the people, and grant unto them their sacred privileges
to worship the Lord their God; yea, to support and maintain the cause
of God in all his days, and to bring the wicked to justice, according
to their crimes.
The punishment of corruption, or malfeasance in office, was specially
provided for. King Mosiah explains the provisions of the law on this
subject in the following language: And now if ye have judges and they
do not judge you according to the law which has been given, ye can
cause that they may be judged by a higher judge: if your higher judges
do not judge righteous judgments, ye shall cause that a small number
of your lower judges should be gathered together, and they shall
judge your higher judges according to the voice of the people. These
safeguards became strong bulwarks for the protection of the rights of
the individual and the preservation of the liberty of the whole people.
When Alma, the first chief judge, resigned that office, so that he
might devote all his time and energies to the work of saving the souls
of men, he nominated or suggested his successor; but whether this was
simply a courtesy extended to him by the people on account of their
great love for his person and respect for his judgment, or whether it
was a provision of the law, is not plain. The passage states that Alma
chose Nephihah as his successor, and gave him power, according to the
voice of the people to enact laws according to the laws which had been
given, and to put them in force according to the wickedness and crimes
of the people.
The rights of the people were:[12]
_Personal Liberty_:--It was contrary to the law of Mosiah that there
should be any slaves among the Nephites.
_Equality before the Law_:--No privileged classes. All men to enjoy
their rights and privileges alike.
_Uniformity of Taxation_:--The burden of supporting the government fell
on all the citizens, that every man might bear his part.
_The Elective Franchise_:--Whether the suffrage was confined to men, or
universal, or limited by any particular restrictions, does not plainly
appear.
_The Rights of Petition_:--As examples of the exercise of this right
we introduce the following: At the time when Pahoran was chief
judge a part of the people desired that a few particular points of
the law should be altered. The chief judge refused to alter the law,
whereupon a portion of the people petitioned him, and he directed that
an election be held, or rather that the voice of the whole nation be
appealed to. This being done, the result proved that the majority of
the people objected to a change. Again, Moroni, the commander-in-chief
of the Nephite armies, sent a petition to the chief judge for power
to compel certain dissenters to help defend their country against the
national enemies, or to put them to death. His request being according
to the voice of the people, the desired power was given to him. Here
we have instances of the right of petition exercised, in one case
by a large body of the people, and in the other by a single, though
important, individual. Both were extraordinary circumstances, and in
the latter case it appears to have required the all-powerful _vox
populi_ to give validity to the action of the executive.
The statement is frequently made, though in slightly different phrases,
that the law had no power to punish a man for his belief; for it was
strictly contrary to the commands of God that there should be a law
which should bring men on to unequal grounds. If a man believed in
God it was his privilege to serve him; if he did not believe in him,
there was no law to punish him. * * A man was punished only for the
crimes he had done; therefore all men were on equal grounds. Unbelief
was handled by the church, not by the civil law. The names of those
whose hearts were hardened were blotted out and they were remembered no
more among the people of God. During the days of the Judges there was
no church established by law; when the people served God they elected
righteous men for their rulers; when the masses fell into unbelief and
transgression they chose Gadianton robbers and such like to administer
their laws.
If the rights of women, under the law, were any different, more or
less, than those of men, we have no information; in fact, the inspired
record is entirely silent on this subject.
The criminal law inflicted the death penalty for murder, rebellion and
treason; for robbery, theft, adultery, sexual abominations, fraud and
lying, lesser punishments were inflicted.
The first recorded case of execution for murder under the rule of the
Judges is that of Nehor, for killing the aged patriot, Gideon. Another
noteworthy case is that of Paanchi, the son of Pahoron, of whom it is
written that he was tried according to the voice of the people, and
condemned unto death; for he had raised up in rebellion, and sought to
destroy the liberty of the people.
No high priest, judge or lawyer had power to inflict capital
punishment. When a man had been tried and condemned to death by the law
his condemnation had to be signed by the governor of the land, before
the sentence could be carried out. The mention of governor in this
relation, with other passages in which the chief judge and governor
are spoken of as different persons, suggests the idea that as the
Nephites grew in numbers and spread over distant regions, the duties
of the chief judge became excessive, and a separation was made between
the executive and judicial responsibilities, and divided between two
officers.
The mode of inflicting the death penalty is not stated, but we incline
to the idea that hanging was often resorted to. Military offenders
were, as a rule, put to death with the sword. Of Nehor it is said that
he suffered an ignominious death at the top of the hill Manti, and
that, before his death, he acknowledged between heaven and earth that
he had taught false doctrine. Zemnarihah was hanged upon the top of a
tree until he was dead, and then the Nephites felled the tree to the
earth. Many of the martyrs were burned to death by unjust judges, or
stoned, as was Timothy, afterwards one of the Twelve Disciples; but we
regard this last act as resulting from the violence of a mob, rather
than from any pretended execution of the law.
The law with regard to debtors seems to have been somewhat severe. On
this point it is stated, Now if a man owed another, and he would not
pay that which he did owe, he was complained of to the judge; and the
judge executed authority, and sent forth officers that the man should
be brought before him; and he judged the man according to the law and
the evidences which were brought against him, and thus the man was
compelled to pay that which he owed, or be stripped, or be cast out
from among the people as a thief and a robber. If a man desired to
pay, but from misfortune could not, doubtless the law contained some
merciful provision in his behalf.
It is more than probable that the mode of procedure in all criminal
cases very much resembled the one cited above, and from it we can
gather a very clear idea of the practice of their courts, which differs
but little from that of our own day. The complaint was first made,
the proper officer was then authorized by the court to arrest the
accused and bring him before the judge, the trial next took place, the
witnesses gave their testimony, the law and the evidence were examined,
the opposing lawyers were heard, the judgment was given, the sentence
pronounced and lastly carried out. In times of war the military code
seems to have varied according to the exigencies of the situation.
As a rule, the Nephite armies were composed of volunteers. In times
of great danger to the republic, enlarged powers were given to the
commander-in-chief. In one place we find the statement that Moroni,
having been appointed by the chief judge and the voice of the people,
had power according to his will with the armies of the Nephites, to
establish and to exercise authority over them; also, he caused to be
put to death those of the Amalickiahites (rebels) who would not enter
into a covenant to support the cause of freedom and the rights of their
fellow-countrymen.
Prisoners of war were evidently treated much the same as in modern
civilized nations. Indeed, in one place, the fact that the necessities
of his position compelled Moroni to set his Lamanite prisoners to work,
is referred to in somewhat of an apologetic tone. When such prisoners
attempted to escape, they were slain by their guards. We have numerous
instances where prisoners were released on parole, or on their giving
such promises to the Nephite general as were thought necessary.
It frequently happened, during the days of the Judges, that the
Nephites, in some of their periodical spasms of apostasy and
wickedness, would clamor for changes to be made in their just and
wise laws, in a manner to better suit their degraded habits and
course of life. When the majority of the people were on the side of
righteousness, these attempts were in vain. When wickedness abounded,
the corrupt majority carried their points. The record of their history
shows that in the sixty-second year of the Judges (B. C. 30) they had
altered and trampled under foot the laws of Mosiah, or that which
the Lord had commanded him to give unto the people; and that their
laws had become corrupted, and they had grown wicked like unto the
Lamanites. Seven years later the corruption of the people had become
pitiable. The Gadianton robbers were filling the judgment seats,
having usurped the power and authority of the land: Laying aside the
commandments of God, and not in the least aright before him; doing no
justice unto the children of men; condemning the righteous because of
their righteousness; letting the guilty and the wicked go unpunished,
because of their money; and moreover to be held in office at the head
of government to rule and do according to their wills, that they might
get gain and glory of the world; and moreover that they might the more
easily commit adultery, and steal, and kill, and do according to their
own wills.
Such a condition of affairs, in the course of time, wrought national
disintegration, and would have brought about that result much sooner
than it did, had it not been that, influenced by the mighty preaching
of the inspired servants of God, the Nephites (or portions of them) had
now and again returned to the service of heaven. But such happy periods
were short-lived, and matters went from bad to worse until thirty years
after the birth of Christ, when the republican form of government was
entirely broken up, and the people split up into numerous tribes, each
tribe caring only for its own interests, and giving obedience to its
own particular chief. This state of things only continued for about
four years, as during the terrible convulsions at the time of the
crucifixion of our Lord Jesus Christ, the more wicked portion of the
people were destroyed.
FOOTNOTE:
[12] The people had doubtless other rights which we have failed to
notice, or that are not mentioned by the writers in the Book of Mormon.