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

Table of Contents

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."[2]

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

Notes

  1. 1.0 1.1 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. "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.