[1] See Stanley R. Gunn, Oliver Cowdery: Second Elder and Scribe (Salt Lake City: Bookcraft, 1962); and Richard L. Anderson, “Oliver Cowdery’s Non-Mormon Reputation,” Improvement Era, August 1968; Richard L. Anderson, “Oliver Cowdery, Esq.: His Non-Church Decade,” in To the Glory of God: Mormon Essays of the Great Issues, ed. Truman G. Madsen and Charles D. Tate Jr. (Salt Lake City: Deseret Book, 1972), 199–216; and Richard L. Anderson, Investigating the Book of Mormon Witnesses (Salt Lake City: Deseret Book, 1981).

[2] See Scott H. Faulring, The Return of Oliver Cowdery (Provo, UT: FARMS, 1997).

[3] Court records kept in the nineteenth century can be separated into three major categories: minute books, record books, and case files. Minute books include judgment dockets maintained by the clerk of the court. They included a summary of the procedural history of a case, including the final disposition (the judgment docket), but not the text of the proceedings. Consequently, they are the least significant to study. Record books were transcriptions or copies of the most important pleadings and documents in the case. These books are tremendously useful when the original pleadings and documents are not extant. The case files, as a general rule, are maintained by the court and contain all of the pleadings and documents submitted during the pendency of each case. Case files, therefore, are the richest source of information.

[4] Before staplers and paper clips, lawyers would trifold multiple pages of pleadings and tie a ribbon around them when they filed them with the court.

[5] Lisa Harrison and Dawn Harpster provided invaluable help in locating and organizing these pleadings.

[6] My daughter, Chelsea Pickup, has been transcribing these cases. Her careful and conscientious work continues to be critical in this process.

[7] The American System is a tiered court system. Under state law, small claims courts and district courts try cases. Courts of appeals and the state supreme courts review tried cases. It is a straightforward structure. In contrast, the system in place during Cowdery’s practice was a hybrid system of English courts, including Courts of Exchequer, Courts of Chancery, Courts of Oyer & Terminer, Courts of Common Pleas, Courts of General Sessions, Courts of Special Sessions and Justice Courts. Like the English system, these courts largely separated actions at law and suits in equity.

[8] Sweeping procedural changes in the practice of law in America occurred in 1848 with the adoption of the “Field Code” named after its principal author, Dudley Field. The Field Code effectively extinguished the distinction between actions at law and suits in equity, substituting this practice with one form of action denominated as a “civil action.”

[9] Real writs, which identified claims connected with real property, include (1) Writ of Right: an action, also know as pleas of land, brought to recover title to land by adverse possession; (2) Writ of Entry: an action to recover possession of land, similar to an unlawful detainer or hold-over tenant action; (3) Writ of Dower: an action for a widow to obtain her dower (one-third) interest in her husband’s real property for the remainder of her life; and (4) Writ of Partition: an action to divide real property and its sale for property held in joint tenancy or tenants in common.

[10] Personal writs referred to as ex contractu (“arising from contract”) include (1) Writ of Assumption: an action arising from the breach of an implied or express contract for money or services; (2) Writ of Account: an action seeking an accounting for profits or money owed under an agreement; and (3) Writ of Debt: an action brought to seek a liquidated damage under a contract (e.g., lease or mortgage obligation).

[11] Personal writs referred to as ex delicto (arising from tort”) include (1) Writ of Trespass: an action arising from a direct and immediate injury to a person or personal property; (2) Writ of Trespass on the Case: a catchall action when other writs don’t fit, often used for civil slander and libel actions; (3) Writ of Replevin: an action to recover personal property; and (4) Writ of Trover: an action to receive damages for losses of personal property.

[12] These mixed writs included the following examples: (1) Writ of Ejectment: an action for recovering possession of real property and seeking damages associated with the loss of possession; (2) Writ of Nuisance: an action arising from the disturbance or use of real property and damages associated therewith; and (3) Writ of Waste: an action for the abuse or destruction of real property.

[13] For example, in Wolf and Bishop v. Blair (Seneca County, Ohio, Court of Common Pleas, 1844), Cowdery represented the plaintiffs, while his partner Joel Wilson represented the defendants in a collection case (a Writ of Debt action). While this case appears to have an impermissible conflict of interest with the firm representing both parties, Oliver Cowdery brought the case as an “amicable action,” with Blair, the debtor, being “cognovits” (a confessor of judgment), effectively resolving any conflict.

[14] Oliver Cowdery was, in fact, the first person baptized in this dispensation, having first been baptized by Joseph and then baptizing Joseph on May 15, 1829, in the Susquehanna River.

[15] Oliver Cowdery to Phineas Young, April 16, 1848, as cited in Gunn, Oliver Cowdery, 257.

[16] Leonard J. Arrington, “Oliver Cowdery’s Kirtland, Ohio ‘Sketch Book,’” BYU Studies 12, no. 4 (Summer 1972): 5. Interestingly, Oliver Cowdery did not become licensed to practice law in Ohio until 1840. It is unclear on what basis he was acting in representing Reed, since the law stated, “[N]o person shall be permitted to practice as an attorney or counsellor at law, or to commence, conduct or defend any action, suit or [com]plaint in which he is a party concerned” (Revised Statutes of the State of Ohio, ch. 11, Attorneys at Law, sec. 1, enacted June 1, 1824 [1841]). Consequently, under Ohio law Cowdery could not represent Reed. This in contrast to the laws in other states such as Missouri, which allowed an unlicensed person to practice before justice of the peace courts as they were not “courts of record” (Revised Statutes of the State of Missouri, Attornies at Law, sec. 1, enacted Februrary 18, 1835 [1840]).

[17] Justices of the peace did not have to have any formal legal training. Justices were elected by townships to three-year terms (Constitution of the State of Ohio, article III, sec. 11 [1841]; Revised Statutes of the State of Ohio, ch. 65, Justices’ Election, Resignation, Commission, Bond, etc., sec. 1 [1841]; The Township Officer’s and Young Clerk’s Assistance Comprising the Duties of Justice of the Peace [Columbus, OH: Thomas Johnson, 1836], 2).

[18] Cowdery was elected as one of two justices of the peace in Kirtland on April 29, 1837 (the other justice of the peace during this period was Frederick G. Williams). He took office on June 14, 1837, and served for three months and nine days, resigning on September 15, 1837. His older brother, Warren A. Cowdery, replaced him. Cowdery kept a careful docket book during his tenure as justice of the peace. This docket book is preserved in the Huntington Library, San Marino, California. Most of the 240 lawsuits he presided over were collection cases below the $100 jurisdictional limit for justice’s courts (Revised Statutes of the State of Ohio, ch. 66, An Act Defining the Powers and Duties of Justices of the Peace, and Constables in Civil Cases, sec. 1, enacted March 14, 1831 [1841]). He also handled a handful of criminal cases, the most famous being a two-day trial in August where seventy witnesses testified arising from an altercation in the Kirtland Temple. Warren Cowdery added to this docket book during his subsequent tenure.

[19] Oliver and David’s friendship extended back to mid-1820s in New York where they both worked as schoolteachers. Oliver married David Whitmer’s youngest sister, Elizabeth Ann, on December 18, 1832, in Jackson County, Missouri.

[20] Oliver Cowdery to Warren Cowdery, January 21, 1838, Huntington Library, San Marino, California.

[21] Under Missouri law, to become licensed to practice law a person “shall produce satisfactory testimonials of good moral character, and undergo a strict examination as to his qualifications, by one of the [supreme court] judges” (Revised Statutes of the State of Missouri, Attornies at Law, sec. 2, enacted February 18, 1835 [1840]). Missouri had no time requirement for studying law before admission, as there was in Ohio. See note 38.

[22] Cowdery does not appear to be correct here. Circuit attorneys were selected by the Missouri Supreme Court and commissioned by the governor (Revised Statutes of the State of Missouri, Attorney General and Circuit Attorney, sec. 4, approved January 5, 1835 [1840]). Lyman Cowdery was admitted to the Ohio bar on August 20, 1838 (Supreme Court Journal, County of Chardon, State of Ohio, 324).

[23] Oliver Cowdery to Warren and Lyman Cowdery, March 10, 1838, Huntington Library.

[24] Oliver Cowdery to Warren and Lyman Cowdery, March 10, 1838, Huntington Library.

[25] The Revised Statutes of the State of Missouri, Attornies at Law, sec. 1 (1840), states, “No person shall practice as an attorney or counselor at law, or solicitor in the chancery in any court of record, unless he be a free white male, and obtain a license from the supreme court, or one of the judges thereof in vacation.”

[26] Cowdery articulated this general concern to Warren and Lyman by letter wherein he cited a March 10, 1838, letter to Thomas Marsh from David Whitmer, W. W. Phelps, and John Whitmer noting, “It is contrary to the principles of the revelations of Jesus Christ & his Gospel and the laws of the land, to try a person by an offence by an illegal tribunal, or by men prejudiced against him, or by authority that has given an opinion or decision beforehand or in his absence” (Oliver Cowdery to Warren and Lyman Cowdery, March 10, 1838, Huntington Library).

[27] Both contemporary and historical commentators suggest that the term “vexatious lawsuits” as used here and other places meant mean-spirited or malicious lawsuits brought without probable cause. However, cases where less than five dollars was at issue were also referred to as vexatious suits and several states had even limited the ability to bring forward such cases or otherwise limit the action. For example, in Ohio cases that were brought to recover five dollars or less, the plaintiff could not recover costs (Revised Statutes of the State of Ohio, ch. 86, sec. 78 [1841]). It appears that it is within this context that the reference to vexatious lawsuits is being made. This is further supported from the testimony proffered during the hearing in which the complaints are against Cowdery wanting to do “collection” work. This kind of legal work, while certainly not vexatious in terms of it being malicious and without probable cause (the debt would actually be claimed to be owed), but rather for a small amount—something less than five dollars.

[28] Cowdery’s excommunication hearing was held on April 12, 1838, presided over by Bishop Edward Partridge. As indicated, Cowdery did not attend the hearing but provided a letter of explanation. The letter was read at the hearing wherein he denied many of the allegations, noting that he “wished that those charges might have been deferred until after my interview with President Joseph Smith” (Oliver Cowdery to Edward Partridge, April 12, 1838, as cited in Donald Q. Cannon and Lyndon W. Cook, eds., Far West Record: Minutes of The Church of Jesus Christ of Latter-day Saints, 1830–1844 [Salt Lake City: Deseret Book, 1983], 164). Testimony was heard from several persons including John Corrill, John Anderson, Dimick B. Huntington, George Hinckle, George Harris, and David W. Patten. Much of the testimony centered on Cowdery’s practice of law. Testimony included charges that he “had been influential in causing lawsuits in this place, as a number more lawsuits have taken place since he came here than before,” that he “went on to urge lawsuits as even to issue a writ on the Sabbath day also, that he heard him say that he intended to form a partnership with Donaphon who is a man of the world,” and that he “wanted to become a secret partner in the store” so he could act as an attorney and collect debts (Cannon and Cook, Far West Record, 166–67). At the conclusion of the hearing, three of the nine charges were rejected or withdrawn. All the others were sustained, including the charges related to his legal activities, justifying his excommunication (Cannon and Cook, Far West Record, 169).

[29] Cannon and Cook, Far West Record, 165–66. Cowdery started the letter noting that “his understanding on those points [the charges] which are grounds of difference opinions on some Church regulations” (Cannon and Cook, Far West Record, 164). His feelings at the time were more openly expressed to his brother, Warren and Lyman in a letter dated February 4, 1838, where he commented about the upcoming council: “My soul is sick of such scrambling for power and self aggrandizement by a pack of fellows more ignorant than Balaam’s ass. I came to this country to enjoy peace, if I cannot, I shall go where I can” (Oliver Cowdery to Warren and Lyman Cowdery, February 4, 1838, Huntington Library).

[30] Read by the Danite leader, Sampson Avard, during his testimony at the Court of Inquiry held in Richmond in November 1838, selections from this long missive include: “Whereas the citizens of Caldwell county have borne with the abuse received from you at different times, and on different occasions, until it is no longer to be endured; neither will they endure it any longer, having exhausted all the patience they have, and conceive that to bear any longer a vice instead of a virtue. . . . And you shall have three days after you receive this communication to you, including twenty-four hours in each day, for you to depart with your families peaceably; which you may do undisturbed by any person; but in that time, if you do not depart, we will use the means in our power to cause you to depart; for go you shall. . . . Oliver Cowdery, David Whitmer, and Lyman E. Johnson, united with a gang of counterfeiters, thieves, liars, and blacklegs of the deepest dye, to deceive, cheat, and defraud the saints out of their property, by every art and stratagem which wickedness could invent, using the influence of the vilest persecutions to bring vexatious law suits, villainous prosecutions, and even stealing not excepted. In the midst of this career, for fear the saints would seek redress at their hands, they breathed out threatenings of mobs, and actually made attempts with their gang to bring mobs upon them. . . . During the full career of Oliver Cowdery and David Whitmer’s bogus money business, it got abroad into the world that they were engaged in it. . . . Oliver Cowdery, David Whitmer, and Lyman E. Johnson, were engaged while you were there. Since your arrival here, you . . . set up a nasty, dirty, pettifogger’s office, pretending to be judges of the law, when it is a notorious fact, that you are profoundly ignorant of it, and of every other thing which is calculated to do mankind good, or if you know it, you take good care never to practise it. . . . And, amongst the most monstrous of all your abominations, we have evidence (which, when called upon, we can produce,) that letters sent to the post office in this place have been opened, read, and destroyed, and the persons to whom they were sent never obtained them; thus ruining the business of the place. We have evidence of a very strong character, that you are at this time engaged with a gang of counterfeiters, coiners, and blacklegs, as some of those characters have lately visited our city from Kirtland, and told what they had come for; and we know, assuredly, that if we suffer you to continue, we may expect, and that speedily, to find a general system of stealing, counterfeiting, cheating, and burning property, as in Kirtland—for so are your associates carrying on there at this time; and that, encouraged by you, by means of letters you send continually to them; and, to crown the whole, you have had the audacity to threaten us, that, if we offered to disturb you, you would get up a mob from Clay and Ray counties. For the insult, if nothing else, and your threatening to shoot us if we offered to molest you, we will put you from the county of Caldwell: so help us God.”

A total of eighty-three Church members, including a number of Church leaders, signed this letter. Interestingly, neither Joseph Smith, Sidney Rigdon, nor Hyrum Smith of the First Presidency signed the petition (Document Containing the Correspondence, Orders, &C. in Relation to the Disturbances with the Mormons; And the Evidence Given Before the Hon. Austin A. King, Judge of the Fifth Judicial Circuit of the State of Missouri, at the Court-House in Richmond, in a Criminal Court of Inquiry, Begun November 12, 1838, on the Trial of Joseph Smith, Jr., and Others, for High Treason and Other Crimes Against the State [Fayette, MO: Boon’s Lick Democrat, 1841], 103–7). For a discussion of these documents, see Stanley B. Kimball, “Missouri Mormon Manuscripts: Sources in Selected Societies,” BYU Studies 14, no. 4 (Summer 1974): 458–87.

[31] Oliver Cowdery to Warren and Lyman Cowdery, June 2, 1838, photocopy of original in Gunn, Oliver Cowdery, 263.

[32] Oliver Cowdery to Warren and Lyman Cowdery, June 2, 1838, photocopy of original in Gunn, Oliver Cowdery, 263–64.

[33] Oliver Cowdery to Warren and Lyman Cowdery, June 2, 1838, photocopy of original in Gunn, Oliver Cowdery, 265.

[34] Lyman Cowdery to Oliver Cowdery, August 21, 1838, Huntington Library.

[35] Lyman Cowdery to Oliver Cowdery, August 21, 1838, Huntington Library.

[36] Cowdery appeared as the secretary in the organizational minutes for the Western Reserve Teachers Seminary and Kirtland Institute on November 21, 1838 (Lake County Historical Society, Mentor, Ohio, microfilm copy, Perry Special Collections).

[37] William Lang, who studied law under Cowdery, recalled, “He came to Ohio when he was a young man and entered the law office of Benjamin Bissell, a very distinguished lawyer in Painesville, Lake county, as a student, and was admitted to practice after having read the requisite length of time and passed an examination” (William Lang, History of Seneca County from the Close of the Revolutionary War to July, 1880 [Springfield, OH: Transcript Printing Co. 1880], 364).

[38] Under Ohio law, a person may be admitted to practice law by being examined “by any two judges of the [Ohio] supreme court” (Ohio Revised Statutes, ch. 11, sec. 1 [1841]). The qualifications to be examined for admittance to the Ohio bar are articulated in section 3 of the same chapter, noting in part: “That no person shall be admitted to such examination unless he shall have previously resided one year within this state, and shall produce, from some attorney or counsellor at law, a certificate, setting forth that such applicant is of good moral character, and that he has regularly and attentively studied the law, during the period of two years, previous to his application for admission, and that he believes him to be a person of sufficient legal knowledge and abilities to discharge the duties of an attorney or counsellor at law.” Cowdery clearly satisfied the “residency” requirement, having moved to Ohio in late 1838 and was admitted in or about January 1840. However, it is less clear whether he studied law for the requisite two years. One must assume that Bissell permitted Cowdery to count some of the time studying law while in Missouri. As noted, Cowdery obtained a series of law books by January 1838, noting to his brothers by letter dated March 10, 1838, “I am pursuing my study as fast as health and circumstances will permit and hope I may feel competent to apply for a license in this summer.” See note 21.

[39] Richard L. Anderson noted that the earliest advertisement of Cowdery and Lyman’s practice is found in the Painesville Republican under the name “L & O Cowdery” dated January 20, 1840 (Anderson, Investigating the Book of Mormon Witnesses, 47n5). However, Stanley R. Gunn, note that the earliest advertisement for “L & O Cowdery” was in the Painesville Telegraph, March 3, 1840 (Gunn, Oliver Cowdery, 169, 201n15). Regardless, both of these scholars would agree that Cowdery was admitted to practice law in Ohio when he traveled to Tiffin in May 1840.

[40] Lang, History of Seneca County, 365.

[41] Gunn provides a partial listing of cases he identified from the Tiffin Courthouse records noting Oliver Cowdery’s practice (Gunn, Oliver Cowdery, 183, 185–87). It appears that Gunn reviewed the judgment dockets (Gunn, Oliver Cowdery, 201n4). While Gunn used the dockets to note when a case was handled, the date of the judgment is when the case was resolved, not when it was filed. Traditionally, one looks at the filing date as to the date of the case.

[42] For a useful overview of the process of preparing these cases for publication using a documentary editing process, see Mary-Jo Kline and Susan Perdue, A Guide to Documentary Editing (Charlottesville: University of Virginia Press, 1998).

[43] Pottawattamie High Council Minutes, November 5, 1848, Church History Library.

[44] Lang, History of Seneca County, 365.