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Was the practice of polygamy against the law in Illinois in the 1840s?
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- 1 Was the practice of polygamy against the law in Illinois in the 1840s?
Was the practice of polygamy against the law in Illinois in the 1840s?
Important introductory material on plural marriage available here
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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.
- — Gordon A. Madsen[1]:402
Questions
- Was the practice of polygamy against the law in Illinois?
To see citations to the critical sources for these claims, [[../CriticalSources|click here]]
Answer
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.
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.
Detailed Analysis
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.[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
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
The same author emphasized:
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.[1]:408
Secrecy and plural marriage
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.
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:
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.[2]....
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,[3] and they rush away and leave the Church, and conspire to take away my life; and because I will not countenance such wickedness,[4] they proclaim that I have been a true prophet, but that I am now a fallen prophet.
[Joseph H.] Jackson[5] 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 [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.[6]
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
Similar cases
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
Consummation of the sealing between Maria and Joseph Smith?
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 of those that was consummated. This is due to relatively late, second-hand testimony, which Brian Hales has explored in detail.Cite error: Closing </ref> missing for <ref> tag 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
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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.[7]
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.[8]