On January 16, 1851, the legislature of the State of Deseret passed a 34-section law entitled “Criminal Laws of the State of Deseret.” It actually makes for interesting reading. In 1851, the Mormons had been in Utah for only four years. The Territory of Utah had been formed in 1850, but federal authority in Utah was weak to completely non-existent. It would be another six years before any serious outside authority in the form of Johnston’s Army arrived. In other words, Mormon theocracy was firmly in the saddle, the real legal authority was clearly the State of Deseret and not the Territory of Utah, and Mormon political independence was probably as nearly complete as it has ever been. Hence, the laws that they chose to pass are particularly interesting as an insight into Mormon theocratic ambitions.
Murder, accessory to murder, and abortion (see below) were the only capital offenses. There were fairly elaborate procedures for executive review so that no person could be executed without Brigham Young first making the decision whether or not to commute the sentence or pardon the person. Execution could be by hanging, firing squad, or beheading.
Strangely, the most elaborate provision of the law had to do with medical care. It made it a crime for a doctor to administer any kind of drug without first getting informed consent from either the patient or the patient’s “friends and family.” Interestingly, doctors in immigrant trains traversing the state were exempt from the law. Adultery and fornication were made a crime (no distinction was made between them) punishable by a fine and up to five years imprisonment. Women were made equally liable with men. Also, swearing in the name of God or Jesus Christ was made punishable by a fine of five dollars.
Of interest to the current culture wars were two provisions, one on homosexuality and one on abortion. The provision on homosexuality made Sodomy a crime, stating:
- Sec. 23. Be it further ordained, that any man or boy shall have, or attempt to have, any sexual intercourse with any male creation, on conviction thereof, they shall be deemed guilty of Sodomy, and fined or imprisoned, or both, as the court may direct.
Notice that no maximum or minimum fine or sentence is stated. Most of the provisions of the code don’t contain any maximum or minimum sentences. Another thing to notice is that Sodomy is only punishable by imprisonment, but not by “imprisonment and hard labor,” which interestingly was the punishment for adultery and fornication. Thus Sodomy was a crime on par with robbery, considerably less serious than murder, and slightly less serious than fornication or adultery. It was also treated less severely than bestiality, which was declared a “high misdemeanor.”
The provision on abortion stated:
- Sec. 26. Be it further ordained, that if any person or persons shall use any means by which an untimely birth of any child shall be had, or any pregnant woman shall be delivered, by which the death or one or either may be produced, unless the same shall be proven to have been done for the purpose of preserving the life of the mother, they shall be deemed guilty of murder, and upon conviction thereof, suffer the penalty provided in the first section of this ordinance [i.e. death].
So here we have a statute that treats abortion as a murder, unless done to preserve the life of the mother. The death of the mother is also treated as murder if it occurs incident to an abortion.
One interesting thing about this law code is that other than the provision about swearing, it seems to be more or less devoid of overtly Mormon theological content. Providing execution by beheading is arguably motivated in part by blood atonement ideas. The sodomy, adultery, bestiality, and blasphemy provisions may appear theological to our eyes, but blasphemy laws were fairly common in the nineteenth century, as were the sexual regulations.
Contrast these laws to the Body of Liberties of 1641, the earliest existent legal code of that other American theocracy, Puritan Massachusetts. That code contained a list of twelve capital crimes carefully drawn from the Old Testament, complete with scriptural references included in the margin of the law. For all of the rhetoric before and since about the Mormon exodus, the modern Children of Israel, and Brigham as the American Moses, as near as I can tell there is only one arguably Mosaic innovation in the “Criminal Laws of the State Deseret”: The provision on robbery requires that a thief make four fold restitution to his victim. This might be a reference to Exodus 22:1, which states that any man who steals a sheep must restore four sheep to his victim. Other than that, there is nothing in this legal code – unlike the Massachusetts law – that suggests that the Mormons were legal innovators interested in founding their laws on scripture and revelation.