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Women of Mormonism
Appendix - U.S. Supreme Court Ruling
THE WOMEN OF MORMONISM:
or
THE STORY OF POLYGAMY
As Told by the Victims Themselves.
Edited By
JENNIE ANDERSON FROISETH
Editor of the Anti-Polygamy Standard, Salt Lake City,
PUBLISHED BY
C.G.G. PAINE, DETROIT, MICH.
1886
Copyright, 1881 and 1882
By Jennie Anderson Froiseth
APPENDIX : DECISION OF THE SUPREME
COURT OF THE UNITED STATES IN THE CASE OF
GEORGE REYNOLDS OF UTAH, CONVICTED OF BIGAMY.
[401]
There are those who cannot see how the
Government can interfere with polygamy, since it is claimed by the Mormons to be a part of
their religion. For the benefit of such persons, we give below the decision of Justice
Waite in this case, so far as it pertains to this point:-
V. As to
the defense of religious belief or duty.
On the trial, the plaintiff in error, the
accused, proved at the time of his alleged second marriage he was, and for many years
before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly
called the Mormon church, and a believer in its doctrines; that it was an accepted
doctrine of that church "that it was the duty of male members of said church,
circumstances permitting, to practice polygamy; * * *
that this duty was enjoined by different books which the members of said
church believed to be of divine origin, and among others the Holy Bible, and also that the
members of the church believed that the practice of polygamy wad directly enjoined upon
the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder
and prophet of said church; that the failing or refusing to practice polygamy by such male
members of said church, [402] when circumstances would admit, would be punished and that
the penalty for such failure and refusal would be damnation in the life to come." He
also proved "that he had received permission from the recognized authorities in said
church to enter into polygamous marriage; * * * that Daniel H. Wells, one having authority
in said church to perform the marriage ceremony, married the said defendant on or about
the time the crime is alleged to have been committed, to some woman by the name of
Schofield, and that such marriage ceremony was performed under, and pursuant to, the
doctrines of said church."
Upon this proof he asked the court to
instruct the jury that if they found from the evidence that he "was married as
charged-if he was married-in pursuance of, and in conformity with, what he believed at the
time to be a religious duty, that the verdict must be, 'not guilty.'" This request
was refused, and the Court did charge " that there must have been a criminal intent,
but that if the defendant, under the influence of a religious belief that it was
right,-under an inspiration (if you please) that it was right,-deliberately married a
second time, having a first wife living, the want of consciousness of evil intent, the
want of understanding on his part that he was committing a crime, did not excuse him; but
the law in such case inexorably implies the criminal intent."
Upon this charge and refusal to charge,
the question is raised whether religious belief can be accepted [403] as a justification
of an overt act made criminal by the law of the land. The inquiry is not as to the power
of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who
knowingly violates a law, which has been properly enacted, if he entertains a religious
belief that the law is wrong.
Congress cannot pass a law for the
government of the Territories which shall prohibit the free exercise of religion. The
first amendment to the constitution expressly forbids such legislation. Religious freedom
is guaranteed everywhere throughout the United States, so far as Congressional
interference is concerned. The question to be determined is whether the law now under
consideration comes within this prohibition.
The word "religion" is not
defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning,
and nowhere more appropriately, we think, than to the history of the times in the midst of
which the provision was adopted. The precise point of the inquiry is, What is the
religious freedom which has been guaranteed?
Before the adoption of the Constitution,
attempts were made in some of the colonies and States to legislate not only in respect to
its doctrines but to its precepts, as well. The people were taxed against their will for the
support of religion, and sometimes for the support of particular sects to whose tenets the
could not and did not subscribe. Punishments
were prescribed for a failure to attend upon public worship, [404] and sometimes for
entertaining heretical opinions. The controversy upon this general subject was animated in
many of the States, but seemed at last to culminate in Virginia. In 1784 the House of
Delegates of that State, having under consideration "a bill establishing provision
for teachers of the Christian religion," postponed it until the next session, and
directed that the bill be published and distributed, and that the people be requested
"to signify their opinion respecting the adoption of such a bill at the next session
of assembly."
This brought out a determined opposition.
Among others, Mr. Madison prepared a "Memorial and Remonstrance," which was
widely circulated and signed, and in which he demonstrated "that religion, or the
duty we owe the Creator," was not within the cognizance of civil government.
(Semple's Virginia, Baptists, Appendix.) At the next session the proposed bill was not
only defeated, but another " for establishing religious freedom," drafted by Mr.
Jefferson (1 Jeff. Works, 45; 2 Howison's Hist. of Va., 298.), was passed. In the preamble
of this act (12 Hening's Stat., 84), religious freedom is defined, and after a recital
"that to suffer the civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy which at once
destroys all religious liberty," it is declared "that it is time enough for the
rightful purpose of civil government for its officers to interfere when principles [405]
break out into overt acts against peace and good order.” In these two sentences is
found what properly belongs to the Church and what to the State.
In a little more than a year after the
passage of this statute the convention met which prepared the Constitution of the United
States. Of this convention Mr. Jefferson was not a member, he being then absent as Minister to France. As soon as he saw
the draft of the Constitution proposed for adoption, he, in a letter to a friend,
expressed his disappointment at the absence of an expressed declaration insuring the
freedom of religion (2 Jeff: Works, 355.), but was willing to accept it as it was,
trusting that the good sense and honest intentions of the people would bring about the
necessary alterations (1 Jeff. Works, 79.). Five of the States, while adopting the
Constitution, proposed amendments. Three, New Hampshire, New York, and Virginia, included
in one form or another a declaration of religious freedom in the changes they desired to
have made, as did also North Carolina, where the convention at first declined to ratify
the Constitution until the proposed amendments were acted upon. Accordingly at the first
session of the first Congress the amendment now under consideration was proposed with
others by Mr. Madison. It met the views of the advocates of religious freedom and was
adopted. Mr. Jefferson afterward, in a reply to an address to him by a committee of the
Danbury Baptist Association (18 Jeff. Works, 113.), took occasion to say: “Believing
[406]
with you that religion is a matter which
lies solely between man and his God, that he owes account to none other for his faith or
his worship, that the legislative powers of the Government reach actions only, and not
opinions, I contemplate with solemn reverence that act of the whole American people which
declared that their Legislature should ‘make no law respecting an establishment of
religion or prohibiting the free exercise thereof, thus building a wall of separation
between Church and State. Adhering to this expression of the supreme will of the nation in
belief of the rights of conscience, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore man to all his natural rights, convinced he has no
natural right in opposition to his social duties.' Coming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured. Congress
was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order.”
Polygamy has always been odious among the
northern and western nations of Europe, and until the establishment of the Mormon church,
almost exclusively a feature of the life of Asiatic and African people. At common law the
second marriage was always void (2 Kent's Com., 79.), and from the earliest history of
England, polygamy has been treated as an offense against society. After the [407]
establishment of the ecclesiastical courts, and until the time of James I. it was punished
through the instrumentality of those tribunals, not merely because ecclesiastical rights
had been violated, but because upon the separation of the ecclesiastical courts from the
civil, the ecclesiastical were supposed to be the most appropriate for the trial of
matrimonial causes and offenses against the rights of marriage, just as they were for
testamentary causes and the settlement of the estates of deceased persons.
By the statute 1, James I., chap. 11., the
offense, if committed in England or Wales, was made punishable in the civil courts, and
the penalty was death. As this statute was limited in its operation to England and Wales,
it was at a very early period re-enacted, generally with some modifications, in all the
colonies. In connection with the case we are now considering, it is a significant fact
that on the 8th of December, 1788, after the passage of the act establishing religious
freedom, and after the convention of Virginia had recommended as an amendment to the
Constitution of the United States the declaration in a bill of rights that " all men
have an equal natural and unalienable right
to the free exercise of religion, according to the dictates of conscience," the
Legislature of that State substantially enacted the statute of James I., death penalty
included, because as recited in the preamble “it hath been doubted whether bigamy or
polygamy be punishable by the laws of this commonwealth." ( 12 Hening”s Stat.
691). From that day to this we think it may safely [408] be said there never has been a
time in any State of the union when polygamy has not been an offense against society,
cognizable by the civil courts and punishable with more or less severity. In the face of
all this evidence it is impossible to believe that the constitutional guaranty of
religious freedom was intended to prohibit legislation in respect to this most important
feature of social life. Marriage, while from its very nature a sacred obligation, is
nevertheless in most civilized nations a civil contract and usually regulated by law. Upon
it society may be said to be built, and out of its fruits spring social relations and
social obligations and duties, with which government is necessarily required to deal. In
fact, according as monogamous or polygamous marriages are allowed, do we find the
principles, on which the government of the people rests, to a greater or less extent.
Professor Lieber says, Polygamy leads to patriarchal principle, and which, when applied to
large communities, fetters the people in stationary despotism, while that principle cannot
long exist in connection with monogamy. Chancellor Kent observes that this remark is
equally striking and profound. (2 Kent's Com., 81, note. e.) An exceptional colony of
polygamists under all exceptional leadership may sometimes exist for a time without
appearing to disturb the social condition of the people who surround it, but there cannot
be a doubt that, unless restricted by some form of constitution, it is within the scope of
the power of every civil government to determine whether polygamy or monogamy shall be the
law of social life under its domain.
[409] In our opinion the statute
immediately under consideration is within the legislative power of Congress. It is
constitutional and valid as prescribing a rule of action for all those residing in the
Territories and in places over which the United States have exclusive control. This being
so, the only question which remains is, whether those who made polygamy a part of their
religion are excepted from the operation of the statute. If they are, then those who do
not make polygamy a part of their religious belief may be found guilty and punished, while
those who do must be acquitted and go free. This would be introducing a new element into
criminal law. Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinion, they may with practices. Suppose one believed that
human sacrifices were a necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the
funeral pile of her dead husband,, would it be beyond the power of the civil government to
prevent her carrying her belief into practice? To permit this would be to make the
professed doctrines of [410] religious belief superior to the law of the land, and in
effect to permit every citizen to become a law unto himself. Government could exist only
in name under such circumstances.
A criminal intent is generally an element
of crime, but every man is presumed to intend the necessary and legitimate consequences of
what he knowingly does. Here the accused knew he had been once married, and that his first
wife was living. He also knew that his second marriage was forbidden by law. When,
therefore, he married the second time, he is presumed to have intended to break the law.
And the breaking of the law is the crime. Every act necessary to constitute the crime was
knowingly done, and the crime was, therefore, knowingly committed. Ignorance of a fact may
sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.
The only defense of the accused in this case is his belief that the law ought not to have
been enacted. It matters not that his belief was a part of his professed religion, it was
still belief, and belief only.
In Regina vs. Wagstaff (10 Cox
Crim.
Cases, 531.), the parents of a sick child who omitted to call in medical attendance
because of their religious belief that what they did for its cure would be effective, were
held not to be guilty of manslaughter, while it was said the contrary would have been the
result if the child had actually been starved to death by the parents, under the notion
that it was their religious duty to abstain from giving it food. But when the [411]
offense consists of a positive and which is knowingly done, it would be dangerous to hold
that the offender might escape punishment because he religiously believed the law which he
had broken ought never to have been made. No case, we believe, can be found that has gone
so far.
[Reynold's counsel also claimed that the
decision should be set aside because the judge in his charge to the jury improperly
directed their attention to the consequences of polygamy. The following is the part of the
decision pertaining to that point]:-
VI. As to that part of the charge which directed the
attention of the jury to the consequences of polygamy.
The passage complained of is as follows:
"I think it not improper, in the discharge of your duties in this case, that you
should consider what are to be the consequences to the innocent victims of this decision.
As this contest goes on, they multiply, and there are pure-minded women, and there are
innocent children-innocent in a sense even beyond the degree of the innocence of childhood
itself, - these are to be the sufferers; and as jurors fail to do their duty as these
cases come up in the Territory of Utah, just so do these victims multiply and spread
themselves over the land.”
While every appeal by the court to the
passions or the prejudices of the jury should be promptly rebuked, and while it is the
imperative duty of a reviewing court to take care that wrong is not done in this way, we
see no just cuse for complaint in [412] complaint in this case. Congress in 1862 (12
Stat., 501.), saw fit to make bigamy a crime in the Territories. This was done because of
the evil consequences that were supposed to flow from plural marriages. All the court did
was to call the attention of the jury to the peculiar character of the case for which the
accused was on trial, and to remind them of the duty they had to perform. There was no
appeal to the passions, no instigation of prejudice. Upon the showing made by the accused
himself, he was guilty of a violation of the law under which he had been indicted; and the
effort of the court seems to have been, not to withdraw the minds of the jury from the
issue to be tried, but to bring them to it: not to make them partial, but to keep them
impartial.
Upon a careful consideration of the whole
case we are satisfied that no error was committed by the court below, and the judgment is
consequently affirmed.
This concludes the book. I
apologize for any typos which I may not have corrected. Kelly C. 2/5/00
Back: CHAPTER XXIII. VIEWS OF A STATESMAN
BY HON. SCHUYLER COLFAX*
Mormon Defiance.-Juries.-:Female Suffrage.-Right of Dower. - Abolish the Legislature.-Heed
the Gentiles.-The Golden Time.
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