Joseph Smith/Polygamy/Illegal in Nauvoo

Was the practice of polygamy against the law in Illinois in the 1840s?

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Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844. Illinois law only criminalized adultery or fornication if it was "open". Had Joseph lived to face trial on this charge, he would have had good reason to expect acquittal because his relationships with his plural wives were not open, but were kept confidential and known by a relative few. Given a fair trial on this indictment, Joseph could have relied on several legal defenses.
— M. Scott Bradshaw[1]:402
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M. Scott Bradshaw: "Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844"

M. Scott Bradshaw:

Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844. Illinois law only criminalized adultery or fornication if it was "open". Had Joseph lived to face trial on this charge, he would have had good reason to expect acquittal because his relationships with his plural wives were not open, but were kept confidential and known by a relative few. Given a fair trial on this indictment, Joseph could have relied on several legal defenses.[1]:402


Question: Was Joseph Smith ever charged with adultery under Illinois law?

William and Wilson Law charged Joseph with adultery in the case of Maria Lawrence

Joseph Smith was, in fact, once charged with adultery under Illinois Law. This occurred shortly before his death, when Robert Foster, William Law (Joseph's former counselor in the First Presidency) and Law's brother Wilson charged Joseph with adultery in the case of Maria Lawrence.[1]:403,414 Joseph took an aggressive stance in the defense of himself and Maria, which would be surprising if Illinois law was as detrimental to his case as many have assumed.

For example, as soon as Joseph was charged, two days later he and his supporters "rode to Carthage, intent on having" the charge "'investigated.'"[1]:404

Illinois law only criminalized adultery or fornication if it was "open"

It is vital to understand, however, that:

Joseph Smith could not have been properly convicted of adultery under the law of Illinois in 1844. Illinois law only criminalized adultery or fornication if it was "open". Had Joseph lived to face trial on this charge, he would have had good reason to expect acquittal because his relationships with his plural wives were not open, but were kept confidential and known by a relative few. Given a fair trial on this indictment, Joseph could have relied on several legal defenses.[1]:402

Joseph's relationships with his plural wives did not meet this definition

The same author emphasized:

The term "open" in [the Illinois Criminal Code of the day[2]] is a key element of this crime. The meaning of this term was then and still today is generally understood in law to cover conduct that is "notorious," "exposed to public view," or "visible," and which is "not clandestine." Joseph's relationships with his plural wives did not meet this definition.[1]:408


Question: Were there any similar cases under Illinois adultery statute which demonstrate that Joseph was not breaking the law?

Two cases decided after Joseph's death demonstrate that there was nothing which would have permitted conviction

Two cases decided after Joseph's death but under the same legal regime likewise demonstrate that there was nothing about Maria and Joseph's relationship (regardless of whether or not they had sexual relations) which would have permitted conviction under the Illinois adultery statute. Additionally, Stephen R. Douglas (the famed Illinois judge and later candidate for the presidency of the United States) and Thomas Ford (the governor of Illinois at the time of Joseph's murder) prosecuted adultery cases during their legal careers and both were definitive that an "open" and "notorious" aspect to the cohabitation had to be proven under the statute.[1]:408-411

If Joseph been charged by his wife Emma with adultery, this could have served as grounds for divorce under Illinois law

By contrast, had Joseph been charged by his wife Emma with adultery, this could have served as grounds for divorce, and did not require the stringent requirements of being "open" or "notorious."[3]

It was later realized that Illinois law would probably support the practice of Latter-day Saint plural marriage, so they changed the wording of the law

Even Joseph's near-contemporaries would later realize that Illinois law would probably support the practice of Latter-day Saint plural marriage, perhaps even if done so openly.

Recognizing the breadth of [the] state constitutional provision [for religious freedom] as it stood in 1844, Illinois adopted a new constitution in 1869 that introduced a number of changes in the clause governing religious liberty, including wording specifically intended to give the state authority to prohibit Mormon polygamy or other religiously-based practices that might be deemed offensive. Comments by certain delegates to the 1869 Illinois Constitutional Convention show taht there was a concern that the Mormon practice of plural marriage could be protected under the state constitution....

Several delegates expressed support for changes in the wording of the Illinois constitution in order to protect the state from what they viewed as extreme forms of worship, including Mormon polygamy. These delegates feared that the more liberal wording of the earlier constitution (in force in Joseph's day) might actually protected practices such as polygamy. One such delegate was Thomas J. Turner...[who] stated:"...Mormonism is a form of religion 'grant it, a false religion' nevertheless, it claims to be the true Christian religion...[d]o we desire that the Mormons shall return to our State, and bring with them polygamy?"[1]:416, 416n45


Question: Why did Joseph Smith say "I had not been married scarcely five minutes...before it was reported that I had seven wives"?

The Laws sought to have Joseph indicted for adultery and perjury

This statement refers to Joseph's well-known declaration on 26 May 1844 in his "Address of the Prophet—His Testimony Against the Dissenters at Nauvoo". Significantly, this address was given the day after the Laws sought to have Joseph indicted for adultery in the case of Maria Lawrence. (They also sought to indict him on a charge of perjury.)

Many have criticized or been concerned by the secrecy with which Joseph instituted plural marriage without appreciating the realities of the dangers involved. Illinois law only criminalized adultery or fornication if it was "open". Since Joseph was sealed to his plural wives for either eternity, or for time and eternity, he did not view these relationships as constituting adultery or fornication. Therefore, under Illinois law, as long as Joseph and his plural wives did not live in an "open," or "public," manner, they were not guilty of breaking any civil law then in force in Illinois. Furthermore, this reality explains some of Joseph's public denials, since he could be truthfully said to not be guilty of the charges leveled against him: he was not committing adultery or fornication.

Joseph was refuting the charge of adultery, not the fact that he had "seven wives"

History of The Church 6:410-411:

I had not been married scarcely five minutes, and made one proclamation of the Gospel, before it was reported that I had seven wives. I mean to live and proclaim the truth as long as I can.

This new holy prophet [William Law] has gone to Carthage and swore that I had told him that I was guilty of adultery. This spiritual wifeism! Why, a man dares not speak or wink, for fear of being accused of this.[4]....

A man asked me whether the commandment was given that a man may have seven wives; and now the new prophet has charged me with adultery. I never had any fuss with these men until that Female Relief Society brought out the paper against adulterers and adulteresses.

Dr. Goforth was invited into the Laws' clique, and Dr. Foster and the clique were dissatisfied with that document,[5] and they rush away and leave the Church, and conspire to take away my life; and because I will not countenance such wickedness,[6] they proclaim that I have been a true prophet, but that I am now a fallen prophet.

[Joseph H.] Jackson[7] has committed murder, robbery, and perjury; and I can prove it by half-a-dozen witnesses. Jackson got up and said—"By God, he is innocent," and now swears that I am guilty. He threatened my life.

There is another Law, not the prophet, who was cashiered for dishonesty and robbing the government. Wilson Law also swears that I told him I was guilty of adultery. Brother Jonathan Dunham can swear to the contrary. I have been chained. I have rattled chains before in a dungeon for the truth's sake. I am innocent of all these charges, and you can bear witness of my innocence, for you know me yourselves.

When I love the poor, I ask no favors of the rich. I can go to the cross—I can lay down my life; but don't forsake me. I want the friendship of my brethren.—Let us teach the things of Jesus Christ. Pride goes before destruction, and a haughty spirit before a downfall.

Be meek and lowly, upright and pure; render good for evil. If you bring on yourselves your own destruction, I will complain. It is not right for a man to bare down his neck to the oppressor always. Be humble and patient in all circumstances of life; we shall then triumph more gloriously. What a thing it is for a man to be accused of committing adultery, and having seven wives, when I can only find one.

I am the same man, and as innocent as I was fourteen years ago; and I can prove them all perjurers. I labored with these apostates myself until I was out of all manner of patience; and then I sent my brother Hyrum, whom they virtually kicked out of doors.[8]

Note the rejection of the term "spiritual wifeism". Note that "spiritual wifeism" likely refers to John C. Bennett's pattern of seduction and sexual license, which the Saints were always at pains to deny.

Joseph was not merely bluffing, nor was he lying—he literally could prove that the Laws were perjuring themselves on this point

In light of the circumstances under which they were spoken, Joseph's words were carefully chosen. Joseph was not merely bluffing, nor was he lying—he literally could prove that the Laws were perjuring themselves on this point in the charges brought only the day before.

Bradshaw cites a portion of Joseph's above statement, and then concludes:

A review of Joseph's remarks in light of the circumstances under which they were spoken shows that Joseph's words were carefully chosen. In this speech, Joseph was specifically reacting to the indictments for perjury and adultery that were presented by the grand jury the day earlier. Thus, when Joseph affirmed during the same speech: "I am innocent of all these charges," he was in particular refuting a claim that he and Maria [Lawrence] had openly and notoriously cohabitated, thus committing the statutory offense of adultery. He was also refuting the perjury charge. While the overall tone of Joseph's remarks may seem misleading, it is understandable that Joseph would have taken pains to dodge the plural marriage issue. By keeping his plural marriages in Nauvoo secret, Joseph effectively kept them legal, at least under the Illinois adultery statute.[1]:413


Question: Was there ever a consummation of the sealing between Maria Lawrence and Joseph Smith?

Although under law, Joseph Smith and Maria Lawrence were not guilty of adultery, this does not mean that they had not consummated their plural marriage

A side issue raised by some relates to what the legal strategy can tell us about the status of Joseph and Maria's sealing. Under law, Joseph and Maria were clearly not guilty of adultery. This does not mean, however, that they had not consummated their plural marriage.

Most authors have concluded that their marriage was one which was consummated. This is due to relatively late, second-hand testimony, which Brian Hales has explored in detail.[9]

Bradshaw suggests:

Joseph instructed John Taylor on June 4, [1844] to initiate legal action against the Laws and Foster for perjury and slander against Maria [for charging her and Joseph with adultery]. No such suit is known to have been filed, since Joseph was killed three weeks later; however, the mere fact that Joseph planned to bring such a suit suggests that, in Joseph's mind, there was nothing to hide in his relationship with Maria. If there had been a sexual dimension to this particular plural marriage, it is almost unimaginable that Joseph would have wanted to file a lawsuit, knowing that Maria might be put on the witness stand—or even subjected to a gynecological examination [to determine whether or not she was a virgin]. The possibility that Joseph's relationship with Maria Lawrence did not involve intimacy is also plausible given his comments regarding the publication of the Expositor: "They make it a criminality for a man to have one wife on earth while he has one wife in heaven."[10] Since the only specific allegation of "criminality" (the adultery indictment) with respect to Joseph's plural marriages concerned Maria Lawrence, this statement by Joseph could be understood as a reference to his spiritual connection, or sealing, with Maria, but perhaps no more.[1]:414

In the same vein, Madsen argues:

The consequences of such an indictment [for adultery with Maria] were both legally and socially scandalous. Maria Lawrence's reputation would have been publicly damaged, independent of what the reputational consequences might have been to Joseph. She and her sister had been sealed to Joseph on May 11, 1843...with Emma's initial consent but later repudiation. Even if this celestial marriage could have been made [publicly] known, it would not have alleviated the scandal—it would have just turned it to another, even more flamboyant, direction....

This plan to counter-sue against the Laws and others has some interesting legal aspects. William Law had supplied testimony under oath that led to Joseph's indictment. If the adultery case had gone to trial and the jury had found Joseph not guilty, then Law would have been liable to a criminal charge of perjury and civil liability for slander. Possibly Joseph planned to prove his innocence, not only by his and Maria's denial of sexual intercourse but also by the testimony of a reputable physician who had conducted a physical examination and found that Maria was still a virgin. It would have been both foolhardy and fruitless for Joseph to have even imagined countersuing without something of such weight to present at trial.[11]

Hales, however, feels that the scenario offered by Madsen and Bradshaw is less likely:

This speculation is problematic because, since Maria was sealed to Joseph in a “time and eternity” sealing, then sexual relations would be permitted. In addition, virginity cannot always be proven by physical exam even if the woman has never experienced intercourse.[12]


Notes

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 M. Scott Bradshaw, "Defining Adultery under Illinois and Nauvoo Law," in Sustaining the Law: Joseph Smith's Legal Encounters, edited by Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch (Provo, Utah: BYU Studies, 2014), 401–426.
  2. Bradshaw cites Criminal Code, section 123, Revised Laws of Illinois: "Any man or woman who shall live together in an open state of adultery or fornication, or adultery and fornication, every such man and woman shall be indicted...." (Bradshaw, 407, emphasis added).
  3. "Compare [the strict criteria for statutory adultery] to Illinois divorce law which allowed adultery as a grounds for divorce; however, the cases that involved divorce petitions on this basis do not seemed [sic] to have followed any clear standard defining what constituted adultery, focusing rather on proving individual acts of adultery. Divorce law did not require that the conduct be "open" or "notorious." - Bradshaw, "Defining Adultery," 407–408n21.
  4. Note that "spiritual wifeism" likely refers to John C. Bennett's pattern of seduction and sexual license, which the Saints were always at pains to deny.
  5. That is, the Relief Society document condemning adultery, which Foster had engaged in under the tutelage of John C. Bennett.
  6. Again, Joseph is denying the spiritual wifeism of Bennett, which he calls "wickedness" and was quick to oppose via Church discipline.
  7. Jackson was another witness against Joseph Smith, and would go on to write an anti-Mormon tract: Joseph H. Jackson, The Adventures and Experiences of Joseph H. Jackson in Nauvoo, (Printed for the Publisher: Warsaw, Illinois, 1846).
  8. Joseph Smith, History of The Church of Jesus Christ of Latter-day Saints, 7 volumes, edited by Brigham H. Roberts, (Salt Lake City: Deseret Book, 1957), 6:410-412. Volume 6 link
  9. See link to Hales' materials at the bottom of this essay. The material about sexuality in the Maria Lawrence relationship is here.
  10. History of the Church. Volume 6 link
  11. Gordon A. Madsen, "Serving as Guardian under the Lawrence Estate, 1842–1844," in Sustaining the Law: Joseph Smith's Legal Encounters, edited by Gordon A. Madsen, Jeffrey N. Walker, and John W. Welch (Provo, Utah: BYU Studies, 2014), 329–356(p. 348-350).
  12. Brian C. Hales, "Maria Lawrence–Evidences of Sexuality," josephsmithspolygamy.org website (accessed 21 June 2014).