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| + | #REDIRECT[[Plural marriage and the law]] |
| − | {{Resource Title|Was the practice of polygamy against the law in Illinois in the 1840s?}}
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| − | {{PolygamyPortal}}
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| − | <onlyinclude>
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| − | {{Epigraph|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.<br>
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| − | :::::— Gordon A. Madsen<ref name="defining"></ref>{{Rp|402}}}}
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| − | {{parabreak}}
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| − | == ==
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| − | {{Criticism label}}
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| − | *Was the practice of polygamy against the law in Illinois?
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| − | <!--*Does the Church ''teach'' or ''claim'' that polygamy was not against the law?-->
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| − | <noinclude>{{CriticalSources}}</noinclude>
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| − | == ==
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| − | {{Conclusion label}}
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| − | Polygamy was certainly declared illegal during the Utah-era anti-polygamy crusade, and many have presumed that it would have been illegal under Illinois law in the 1840s.
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| − | However, recent legal analysis demonstrates that this is not the case—Joseph Smith and his plural spouses had multiple grounds upon which they could expect to be acquitted of the charge of adultery.
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| − | == ==
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| − | {{Response label}}
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| − | Joseph Smith was, in fact, once charged with adultery under Illinois Law. This occurred soon 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.<ref name="defining">{{Article:Bradshaw:Defining Adultery/Full title|pages=}}</ref>{{Rp|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.
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| − | For example, as soon as Joseph was charged, two days later he and his supporters "rode to Carthage, intent on having" the charge "'investigated.'"<ref name="defining"></ref>{{Rp|404}}
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| − | It is vital to understand, however, that:
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| − | <blockquote>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.<ref name="defining"></ref>{{Rp|402}}</blockquote>
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| − | The same author emphasized:
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| − | <blockquote>The term "open" in [the Illinois Criminal Code of the day] 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.<ref name="defining"></ref>{{Rp|408}}</blockquote>
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| − | ==Secrecy and plural marriage==
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| − | Many have criticized or been concerned by the secrecy with which Joseph instituted plural marriage without appreciating these realities. 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.
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| − | For example, there is Joseph's well-known declaration on 26 May 1844. 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.) Said Joseph:
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| − | <blockquote>
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| − | 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.
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| − | 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.<ref>Note that "spiritual wifeism" likely refers to [[Polygamy book/John C. Bennett|John C. Bennett's]] pattern of seduction and sexual license, which the Saints were always at pains to deny.</ref>....
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| − | 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.
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| − | Dr. Goforth was invited into the Laws' clique, and Dr. Foster and the clique were dissatisfied with that document,<ref>That is, the Relief Society document condemning adultery, which Foster had engaged in under the tutelage of [[Polygamy book/John C. Bennett|John C. Bennett]].</ref> and they rush away and leave the Church, and conspire to take away my life; and because I will not countenance such wickedness,<ref>Again, Joseph is denying the spiritual wifism of Bennett, which he calls "wickedness" and was quick to oppose via Church discipline.</ref> they proclaim that I have been a true prophet, but that I am now a fallen prophet.
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| − | [Joseph H.] Jackson<ref>Jackson was another witness against Joseph Smith, and would go on to write an anti-Mormon tract: {{CriticalWork:Jackson:Narrative}}</ref> 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.
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| − | There is another Law, not the prophet [i.e., Wilson], 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.<ref>{{HoC|vol=6|pages=410-411}}</ref></blockquote>
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| − | 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.
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| − | Bradshaw cites a portion of Joseph's above statement, and then concludes:
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| − | <blockquote>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.<ref name="defining"></ref>{{Rp|413}}</blockquote>
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| − | ===Similar cases===
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| − | 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.<ref name="defining"></ref>{{Rp|408-411}}
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| − | ==Consummation of the sealing between Maria and Joseph Smith?==
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| − | 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.
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| − | Most authors have concluded that their marriage was one of those that was consummated. This is due to relatively late, second-hand testimony, which Brian Hales has explored in detail.<ref>See link to Hales' materials at the bottom of this essay. The material about sexuality in the Maria Lawrence relationship is [http://josephsmithspolygamy.org/maria-lawrence-evidences-of-sexuality/ here].}}</ref>
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| − | Bradshaw suggests:
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| − | <blockquote>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."<ref>{{HC|vol=6|num=441}}</ref> 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.<ref name="defining"></ref>{{Rp|414}}
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| − | </blockquote>
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| − | In the same vein, Madsen argues:
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| − | <blockquote>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....<br><br>
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| − | 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.<ref>{{Article:Madsen:Serving as Guardian/Full|pages=348-350}}</ref></blockquote>
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| − | Hales, however, feels that the scenario offered by Madsen and Bradshaw is less likely:
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| − | :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.<ref>Brian C. Hales, "[http://josephsmithspolygamy.org/maria-lawrence-evidences-of-sexuality/ Maria Lawrence–Evidences of Sexuality]," ''josephsmithspolygamy.org'' website (accessed 21 June 2014).</ref>
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| − | == ==
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| − | {{further information label}}
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| − | {{HalesSite
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| − | |subject1=Maria Lawrence
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| − | |link1=http://josephsmithspolygamy.org/history-2/plural-wives-overview/maria-lawrence/
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| − | |summary1=Basic biographical information
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| − | |subject2=Maria Lawrence—Evidences of Sexuality
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| − | |link2=http://josephsmithspolygamy.org/maria-lawrence-evidences-of-sexuality/
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| − | |summary2
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| − | |subject3=FAQ: Did Joseph Smith’s Plural Marriages Include Sexual Relations?
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| − | |link3=http://josephsmithspolygamy.org/faq/sexuality-2/
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| − | |summary3
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| − | |subject4=Sexual Relations are Documented In Less than Half of Joseph Smith’s Plural Marriages
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| − | |link4=http://josephsmithspolygamy.org/faq/sexuality-2/
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| − | |summary2=
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| − | |subject5=Children from Joseph Smith’s Plural Marriages
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| − | |link5=http://josephsmithspolygamy.org/faq/sexuality-2/}}
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| − | == ==
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| − | {{Endnotes label}}
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| − | <references/>
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| − | </onlyinclude>
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| − | {{Articles Footer 1}} {{Articles Footer 2}} {{Articles Footer 3}} {{Articles Footer 4}} {{Articles Footer 5}} {{Articles Footer 6}} {{Articles Footer 7}} {{Articles Footer 8}} {{Articles Footer 9}} {{Articles Footer 10}}
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| − | [[de:Joseph Smith und Polygamie/illegal]]
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| − | [[fr:Joseph Smith/Polygamy/Illegal]]
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| − | [[Category:MormonThink]]
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