The Criminal Law of Deseret

May 25, 2004 | 19 comments
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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.

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19 Responses to The Criminal Law of Deseret

  1. Grasshopper on May 25, 2004 at 12:16 pm

    Was female homosexuality even considered in the law?

  2. Karen on May 25, 2004 at 12:19 pm

    nate, do you have a citation for this code?

  3. Nate Oman on May 25, 2004 at 12:19 pm

    Nope. My understanding, however, is that lesbianism was generally not criminalized.

  4. Nate Oman on May 25, 2004 at 12:28 pm

    Karen: There were a couple of compilation of laws of Deseret published, but my understanding is that they are quite rare and difficult to find. All of the surviving laws passed by the legislature of the State of Deseret were published Volume 8 (1940) of Utah Historical Quarterly, and were republished in Dale L. Morgan, _The State of Deseret_ (Utah State UP, 1987).

  5. Jeremiah J. on May 25, 2004 at 2:42 pm

    Fascinating stuff, Nate. I hope you include some of this in your SPSA paper.

  6. Karen on May 25, 2004 at 2:57 pm

    So do you think that this is evidence that Deseret was not as much of a theocracy as previously assumed, or does it just show that the theocracy valued fairly liberal criminal rules? I think that comparing it to the Puritans is somewhat problematic, considering the time and culture differences, but I can’t think of another appropriate community to compare it to. Perhaps Nauvoo? That would lend a whole different perspective.

  7. Nate Oman on May 25, 2004 at 3:07 pm

    Karen: I am working on a paper on the significance — if any — of these laws. I’ll send you a copy once I have a draft.

    Dale Morgan actually ran some comparison’s with Nauvoo, but they are pretty superficial. What he noticed was that the original charter of Great Salt Lake City was virtually word for word identical with the Nauvoo Charter. What is interesting is that Mormon historians have often laid great stress on the supposed uniqueness of the Nauvoo Charter, arguing that it gave the Mormons a virtual city state in Illinois. What is interesting is that not only was the Nauvoo Charter substantially the same as other charters in Illinois granted at the same time, e.g. Springfield, it is also identical with Salt Lake City, which was not intended to be a city state.

  8. danithew on May 25, 2004 at 3:26 pm

    Do you have any information or knowledge about the penalty for abortion in any other part of the United States during the same time? I am fairly positive that no one was ever executed for causing an abortion, as we probably would be hearing about it to this day.

    I find it odd that abortion is equated to murder, as I don’t believe this strong a conclusion has a firm basis in Mormon theology.

    It seems fairly clear from what is provided that a person who caused the abortion is considered guilty of murder. If during this time a pregnant woman sought out the abortion procedure, was she also considered guilty of murder? I’m not sure the law cited is as clear on this question.

    I don’t know much about the law but I have some personal experiences that inform my opinions on the spiritual significance of abortion vs. the spiritual significance of murder.

    During my mission I interviewed a woman for baptism. We had been instructed not to ask about abortion unless the Spirit prompted us to do so, and on this occasion I felt the Spirit tell me I should ask her. She said that yes, she had had an abortion. Then I felt I should ask her if she had more than one abortion. And she answered yes. As the mission rules dictated, once she had answered these questions positively, I could no longer approve her myself for baptism, but had to refer her forward to have an interview with the mission president. But I felt a strong impression from the Spirit during the interview I conducted that the Lord loved this woman, that she was or would be forgiven and that she would be baptized. The mission president evidently concurred, because the baptism went forward, though the mission president (interestingly) required that the husband receive the discussions first (he was also baptized, along with his wife).

    I had been a strong pro-life advocate my entire life, and had often (previous to this point) compared abortion to murder. But I felt this experience taught me that in fact abortion is not a sin of the same magnitude as murder.

    There was also case I became familiar with, during my mission, of a man who wanted to be baptized, who had committed murder (on more than one occasion). I actually had conversations with this man and heard him describe what he had done. He had to submit to the First Presidency, in writing, a description of his actions where he killed people. I and another elder then went back and informed this man that he was not granted permission for baptism but was encouraged to continue attending church meetings.

    The manner in which I saw these two cases handled, as well as the differing verdicts regarding their ability to be baptized, further convinced me of the difference of seriousness between the two acts.

    Hope these anecdotes are ok to share.

  9. Grasshopper on May 25, 2004 at 5:55 pm

    Daniel,

    For what it’s worth, during my mission, a man who had served time for murdering his wife and the “other man” received permission from the First Presidency to be baptized.

    Something that may have bearing on abortion’s status as murder in Deseret was the common term for it at the time: infanticide.

  10. Matt Evans on May 25, 2004 at 6:54 pm

    Hi Nate,

    This is fascinating. Is the law available online? If not, you should provide some Christian service and type up the other 32 sections for your fellows.

    Until I can compare the section for myself, I’m wondering if the lighter sentence for homosexuality as compared to fornication might be due to the fact that *attempted* homosexuality is included here. (Only completed abortions are mentioned in the other section you cite.)

    Also, why do you believe that lesbianism was tolerated? It seems more likely to me that it was omitted because it was rare, and not due to a deliberate decision to punish all sexuality outside of marriage except lesbianism. People at this time would likely have considered oral sex a form of sodomy, too, even between spouses.

  11. Nate Oman on May 25, 2004 at 7:08 pm

    Matt: The section on adultery and fornication reads–

    Sec. 24 — If any man shall have sexual intercourse with any female not his wife, or shall seduce any female; or any person being accessory to the same, shall, on conviction thereof, be subject to imprisonment and hard labor not exceeding five years, and private damages, and a fine not exceeding five thousand dollars, at the discetion of the court; and any female seducing or unlawfully cohabitating with a male shall recieve the same punishment.

    Reading it now, I suppose that one might construe “unlawful cohabitation” as a different kind of thing that simply sexual intercourse with one not your spouse. Mormon lawyers did argue in the 1880s, however, that unlawful cohabitation required proof of sexual intercourse.

  12. Nate Oman on May 25, 2004 at 7:09 pm

    Matt: The section on adultery and fornication reads–

    Sec. 24 — If any man shall have sexual intercourse with any female not his wife, or shall seduce any female; or any person being accessory to the same, shall, on conviction thereof, be subject to imprisonment and hard labor not exceeding five years, and private damages, and a fine not exceeding five thousand dollars, at the discetion of the court; and any female seducing or unlawfully cohabitating with a male shall recieve the same punishment.

    Reading it now, I suppose that one might construe “unlawful cohabitation” as a different kind of thing that simply sexual intercourse with one not your spouse. Mormon lawyers did argue in the 1880s, however, that unlawful cohabitation required proof of sexual intercourse.

  13. Jeremiah J. on May 25, 2004 at 9:07 pm

    Nate, say something about the concept of seduction in this code. Is it simply another term for getting someone to have sex with you, or did it imply more guilt on the part of one party, such that a seducer could be punished but his ‘victim’ escape punishment?

  14. David King Landrith on May 26, 2004 at 12:00 am

    The fact that lesbianism was not criminalized is evidence of both (1) how male dominated their society was, and (2) how some things never change.

    Guys dig chicks that dig chicks.

  15. Nate Oman on May 26, 2004 at 11:37 am

    David: Gee. Thanks for the crude explanation. I remember hearing the story once that Queen Victoria once remarked that she was all for criminalizing male sodomy, but that she didn’t think that female sodomy was physically possible. It may simply have been a failure of imagination on the part of law makers.

  16. Nate Oman on May 26, 2004 at 11:53 am

    Jeremiah: I have to confess that I don’t really know what seduction consists of legally. Here is what ten minutes of research uncovered this morning. Black’s Law Dictionary states:

    “SEDUCTION. The offense occurs when a man entices a woman of perviously chaste character to have unlawful intercourse with him by means of persuasion, solicitation, promises, or bribes, or other means no involving force. * Many states have abolished this offense for persons over the age of legal consent. Traditionally, the parent has an action to recover damages for the loss of the child’s services. But in measuring the damages, the jury may consider not just the loss of services but also the distress and anxiety that the parent has suffered in being deprived of the child’s comfort and companionship. Though seduction was not a crime at common law, many American states made it a statutory crime until the late 20th century.”

    I also looked it up in Blackstone. As Black’s suggests, there was not crime of seduction at common law. At least Blackstone doesn’t discuss one. He does discuss a crime called “forcible adbudction and marriage” or “stealing an heiress.” He writes”

    “An inferior degree of the same kind of offense, but not attended with force, is punished by the statue of 4 & 5 Ph. & Mar. c. 8. which enacts, that if any person, above the age of foruteen, unlawfully shall convey or take away any woman child unmarried, . . . whint the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices: and if he deflowers such maid or woman child, or, without the consent of parents, contracts matrimoney with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next kind, during the life of her said husband.” (4 Commentaries 209).

    One interesting question raised by the Deseret statue is whether or not the crime of seduction for women was common. I don’t know.

  17. brayden on May 26, 2004 at 12:06 pm

    I’d be interested in comparing the laws of the state of Deseret with other state codes of the that same time period. One of the things that the “society and law” crowd emphasize is the extent to which lawmakers rely upon external models to guide their lawmaking. Law is never constructed from scratch, but instead, tends to represent the accumulated knowledge and decisions of existing codes and statutes. Whoever drafted the Deseret statutes may have done so with the statutes of California by his side. If Deseret lawmakers were indeed copying some of the code, we would have a better idea of why Deseret was not particularly innovative.

  18. Nate Oman on May 26, 2004 at 12:13 pm

    Bayden: I don’t know about the criminal law, but I do know that the constitutional law was almost all borrowed. Hence the first constitution of the state of Deseret looks almost exactly like the constitution of Illinois or Iowa (I think). The constitution underwhich Utah was finally admitted to the Union borrows very heavily from Nevada and Washington. One interesting game to play here is to look at the provisions that got changed. Most of the provisions on religion in the Utah Bill of Rights were taken from the Washington Constitution. The changes are very suggestive.

  19. Adam Greenwood on May 28, 2004 at 3:25 pm

    I would be careful about making drawing conclusions about the relative sinfulness of abortion and murder from Spirit’s confirmation that the aborting woman was less guilty than the murdering man.

    Sin is sin, but responsibility for sin has a mental component. The more I am aware of the sinfulness of my act the more guilty I am. A society that condemns murder and cossets abortion is a society in which most murderers will be more guilty than most women getting abortions, or so I opine.

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