Polygamy and Bastardy

March 3, 2006 | 16 comments

Polygamy created a bastardy problem for nineteenth-century Mormons. At common law, a bastard was a child who was neither born nor begotten of married parents. In the eyes the law such a child was a nullius filius, meaning literally a child of no one. Accordingly, a bastard had no legal name, and, being related to no one, could not inherit in the absence of a bequest from anyone, including his father or mother. (This rule was slightly relaxed fairly early on so that a bastard was legally related to his or her mother, although not to his or her father.)

Children of polygamous marriages were — in the eyes of the law — bastards. This was the case even in the State of Deseret and the later Territory of Utah. The reason was that Mormons tended to approach the legal complications of plural marriage obliquely. Rather than declaring that polygamy was legal, thank you very much, they removed legal disabilities to polygamous marriages without actually mentioning the “p” word. Hence, in 1852, the legislature of the putative State of Deseret passed a law stating that:

Illegitimate children and their mothers inherit in like manner [ie as legal widows and legitimate children] fro the father, whether acknowledged by him or not, provided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children.”

The law was later incorporated into the laws of the Territory of Utah, seeming to solve the bastardy problem. That is until 1862, when Congress passed the Morrill Anti-Bigamy Act, criminalizing polygamy in the territories.

Fast forward to May 25, 1874, when George Handle of Salt Lake City died. George had two wives: Elizabeth and Sara. He also had eight children, four by Elizabeth and four by Sara. Because he married Elizabeth first, she was his legal wife and became the administratrix of his estate. For whatever reason, Elizabeth cut Sara and her children out of the estate, distributing all of the assets to her four children. Sara and her four children sued Elizabeth under the 1852 law. Elizabeth defended by arguing that congress had revoked the law when it criminalized polygamy. Elizabeth’s argument won both at the trial level and at the Utah territorial supreme court. Sara then appealed to the U.S. Supreme Court. By this time it was 1894, and I suspect that with the issuance of the Manifesto and recent conclusion the year before of the Edmunds-Tucker Act litigation against the Church that the justices didn’t want to get involved in another Utah fight. Hence, in Chapman v. Handley, 151 U.S. 443 (1894) the Supreme Court found a way to dodge the issue, holding that they could not hear Sara’s case because she had sued the wrong people (rather than suing Elizabeth, the justices said, she should have sued Elizabeth’s children).

There is one other fun little twist in the story. The U.S. Reports indicate that Sara’s lawyer was “J.G. Sutherland.” This was probably George Sutherland, who at the time was a practicing Utah attorney. The son of Alexander Sutherland — a Mormon immigrant — he was born in England and came to Utah as a young boy. Once in Zion, Alexander and his family left the Church, although George did study at Brigham Young Academy, which he entered at age 12. The Oxford Companion to the Supreme Court, states that at BYA, “he studied under the Mormon scholar Karl G. Maeser. Maeser impressed on him that the framers of the Constitution had been divinely inspired.” Sutherland went on to study law at the University of Michigan under — among others — Thomas Cooley, whose famous treatise on constitutional limitations on the police power provided the intellectual blue print for the jurisprudence of the so-called Lochner era. Upon returning to Utah, Sutherland became active in Utah politics as a member of the Liberal Party (ie Gentile party). This would have been when he acted as Sara’s attorney. From 1901 to 1903 he served in the U.S. House of Representatives, where he championed protectionist tariffs for sugar beats. After serving in the Senate from 1905 to 1917, Warren G. Harding appointed Sutherland as an Associate Justice to the U.S. Supreme Court. (He had been considered for the court in 1910 by the Roosevelt administration, but dropped out of contention when the Democrats captured the White House in 1912.) On the Court, Sutherland was one of the famed “Four Horsemen” who resisted FDR’s New Deal, and championed the dying cause of the Lochner jurisprudence that Professor Cooley had first theorized.

The Court never did resolve the effect of the Morrill Act on the Utah territorial law, and by the time Chapman was decided the issue was moot. Utah had become a state, and as such its intestacy laws were no longer subject to repeal by an act of congress.


16 Responses to Polygamy and Bastardy

  1. Julie M. Smith on March 3, 2006 at 1:46 pm

    “neither born nor begotten”

    Does that phrase point to a legal distinction between birth and conception, or am I missing something?


    That’s a great word.

    And welcome back, Nate.

  2. Norm on March 3, 2006 at 2:15 pm

    Interesting facts about Sutherland,

    Despite initially running unsuccessfully for political office (mayor of Provo, and maybe other attempts) and being very active in the anti-Mormon Liberal Party, he was eventually elected to Congress running on the Republican ticket.

    Also, despite being apostate, and even anti-, for much of his life, BYU awarded him an honorary degree. Was this a more tolerant era at BYU? Or was notoriety enough? I don’t think that Neil LaBute–who is not even anti- –or many other non-Mormon or ex-Mormon BYU alums would be giveb an honorary degree these days.

    (Of course I do recognize that BYU has given several non-LDS scholars and dignitaries such awards. I wish I could think of other prominent former Mormon, BYU alums. Would D. Michael Quinn be eligible for an honorary doctorate, for example?).

  3. Nate Oman on March 3, 2006 at 2:32 pm

    Julie: I think that is right. As I understand it a child begotten out of wedlock whose parents married prior to birth was not treated as a bastard. A child who was born to an unmarried mother and a married but adulterous father was a bastard — ie he was not, legally, his father’s child. A child born to a married woman was presumed as a matter of law to be the child of her husband, regardless of the actual facts.

    The issue of legal relationship is interesting and sometimes counter-intuitive. For example, at Roman law you were not related to your mother.

  4. Nate Oman on March 3, 2006 at 2:35 pm

    Norm: I think that Sutherland’s position was a bit more complicated. While he was involved in liberal politics, both he and his father represented a fair number of polygamists in criminal cases. Also, it seems to be that after the Manifesto there was a concerted effort on the part of Mormons and non-Mormons to paper over past disagreements. Thus, for example, inveterate Mormon-baiter Robert Baskin got put on the Utah Supreme Court, and Reed Smoot — a Mormon apostle — was elected as the inveterately anti-Mormon Republican party’s nominee to the Senate. I suspect that Sutherland’s honorary degrees were a way of acknowledging a successful alum as well as showing that folks were going to let bygones be bygones.

  5. s p bailey on March 3, 2006 at 3:01 pm

    Nate: interesting post. As a summer associate in a Utah firm, I had fun working on an intestate succession case that (due to the lack of closer relatives) involved delving into the issues you discuss and identifying a decedent’s polygamous grandparents’. My religious freedom side was glad that children of polygamy were later permitted to inherit (there are Utah statutes addressing the situation later than those you mention). But my efficiency side soon realized how easy it would have made things if children of polygamy were disinherited (finding all these people would cost a lot, and the pot wasn’t that big anyway to split between such a crowd)!

  6. s p bailey on March 3, 2006 at 3:05 pm

    that should be “a decedent’s polygamous grandparents’ descendants” or perhaps more intelligibly (though less elegantly) “the decendants of the polygamous grandparents of a dead person without a will and any close relatives”

  7. Trent on March 3, 2006 at 3:41 pm

    Good post. I was not aware of Sutherland’s history. Sucks being the second wife.

  8. Norm on March 3, 2006 at 5:02 pm

    Nate: I believe you’re right about ‘bygones being bygones’. But I don’t think anything you said contradicts what I did. Sutherland was, for a time, anti-Mormon. His defense work softened his positions, and show him to be much more sympathetic in the long run. Certainly, during his years in Washingon he defended Mormons and plead Mormon causes, although not always.

    But my point is that, repentant or not, he was a) a former Mormon b) with an anti-Mormon past. Bestowing an honorary degree on him, I agree was a good a move by BYU.

    However, in a way, it’s like Robert Byrd having a change heart, which he may or may not have, and then being honored for his lifetime achievements by the Southern Christian Leadership Conference for his accomplishments. My guess is, that group would be reluctant to honor a former KKK recruiter, even if his later track record was more favorable to civil rights.

  9. Mark B. on March 3, 2006 at 6:07 pm

    And I always thought that the “beats” first showed up in the 1950′s, with Allen Ginsburg and the rest. Now I hear about Sutherland championing the cause of the “sugar beats” a half century earlier. How sweet it is!

  10. DavidH on March 3, 2006 at 6:15 pm

    I have not seen anything indicating the Sutherland (as distinct from his parents) was ever baptized LDS. If he was never baptized, I suppose he would technically not be considered a former Mormon. Does anyone know for sure whether he was ever baptized during his lifetime?

  11. Norm on March 3, 2006 at 6:44 pm

    David: you may be right about his not being baptized. I guess if he never personally identified as Mormon, perhaps it’s wrong to label him so.

    –Of course, the appropriateness of the term can be sticky for self-identifying and non-self-identifying Mormons alike. e.g. [former] Fundamentalists = [former] Mormons? or, certain never-baptized, say, Udalls = [cultural/former] Mormons? But that’s a separate issue I guess. In Sutherland’s case, if I remember, father ceased activity with the church before son would have been baptism age. Of course, who knows where his mother was in all of this.

    I cannot find any evidence of baptism for him, however.

  12. BrianJ on March 3, 2006 at 8:50 pm


    Interesting post, especially the part about children of polygamous marriages being legally illegitimate in Utah. I wonder if you could point me in the direction to answer a related question (or give me a summary): In regards to federal laws and Church laws, what became of polygamist families after the Manifesto? Were the men still prosecuted, etc?

  13. tracy m on March 4, 2006 at 11:16 pm

    Does anyone know what happened to Sara and her children?

    Glad to have you posting again, Nate.

  14. Rosalynde Welch on March 6, 2006 at 10:05 am

    So let me see if I’ve understood you: the legal structures in place in Utah left polygamous offspring—in the eyes of the law, at least—somewhat less closely related to their father than they might have by affirmatively establishing the legal paternity of polygamous fathers. Is that right?

    If so, allow me to try on my sociobiologist’s hat for a moment (you didn’t know I owned one of these, did you). Undoubtedly the Utah law was determined by political expedience as much as anything else. But perhaps there’s something else at work, too: inasmuch as polygamy facilitates a typically male reproductive strategy—that is, to engender many children and invest relatively fewer resources in each (whereas the typically female strategy is to bear fewer children and invest very heavily in each, requiring an extremely high degree of certainty of relatedness to make the enormous investment worthwhile)—the law reflects the lower degree of certainty of paternity characteristic of that strategy.

  15. Nate Oman on March 6, 2006 at 10:16 am

    BrianJ: The short answer is that they continued living with their polygamous families, the feds complained about it from time to time, and nothing much happened (except the Smoot Hearings!).

    Tracy: I don’t know about Sara. The only information I have is the stuff in the U.S. reports.

    RW: I am skeptical. Under the traditional legal rule, a child is assumed to be fathered by the husband of his mother. The legal assumption is predicated on the existence of a legal relationship. Utah law did not technically acknowledge the existence of polygamy (except circuituitously). Hence you had no legal relationship to which one could attach one’s legal assumption. The law responded by making it into a factual rather than a legal inquiry. However, in practice I suspect that we had exactly the same assumption of paternity. In other words, to understand what the law actually is you need to understand not only the doctrinal categories created by the statute and the way that the statute was actually applied. I seriously doubt that the Utah territorial statute operated differently than would a statute in which polygamous marriages were formally acknowledged with a legal assumption of paternity. The other difficulty of the analysis is that a very large portion of these sorts of disputes would have been resolved in ecclesiastical courts, which did not feel bound by the secular law — even the Mormon-authored secular law of the territory.

  16. BrianJ on March 7, 2006 at 8:20 am

    Nate Oman: thanks for the answer! (The wanna-be scholar in me says that I shouldn’t be satisfied with a short answer, but the oughtta-be working side is extremely grateful for your summary.)


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