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 SUPREME COURT 
 
 P 
 
 XJISriTEID STATES, 
 
 Rejxdered (it tTie October Terrrh^ 1878, 
 
 IN THE CASE OP 
 
 GEORGE REYNOLDS, Plaintiff in Error, 
 
 /O 
 
 THE UNITED STATES, Defendant in Error 
 
BIGAMY AND POLYGAMY. 
 
 R^JVJ^EW OF TitE oriNioisr 
 
 SUPKEME COURT 
 
 XJlSriTEID STATES, 
 
 Mertdereci (zt tJte Octohev Ternx^ 1878, 
 
 IN THE CASE OF 
 
 GEORGE REYNOLDS, Plaintiff in Error, 
 
 vs. 
 
 THE UNITED STATES, Defendant in Error. 
 
 BY AN OLD LAWYER. 
 
 ^ 
 

^ \J *^ 
 
 mm »¥ f »<8sa)HB 
 
 It is proposed, in the following paragraphs, to examine the de- 
 cision of the Supreme Court of the United States, in the case of 
 George Keynolds, plaintiff in error, versus the United States, de- 
 fendant. Reynolds was indicted in the District Court for the 
 Territory of Utah, charged with having married one Amelia 
 Jane Schofield ; the said defendant being then already mai/ried 
 to Mary Ann Tuddenham. The indictment was under Section 
 5352 of the Revised Statutes; which is as follows: 
 
 " Every person having a husband or wife living vs^ho marries another, 
 whether married or single, in a territory or other place over which the 
 United States have exclusive jurisdiction, is guilty of bigamy, and shall be 
 punished by a fine of not more than five hundred dollars, and by imprison- 
 ment for a term of not more than five years ; but this section shall not ex- 
 tend to any person by reason of any former marriage, whose husband or 
 wife by such marriage is absent for five successive years, and is not known 
 to such person to be living ; nor to any person by reason of any former 
 marriage which has been dissolved by the decree of a competent court ; 
 nor to any person by reason of any former marriage which has been pro- 
 nounced void by the decree of a competent court, on*the ground of nullity 
 of the marriage contract." 
 
 The first question that arises under the judgment of the court, 
 is in respect to the constitutionality of the statute upon which the 
 indictment was predicated. All the authority which Congress 
 possesses, or may lawfully exercise over the Territories, or over 
 whatever they may include, either directly, or at the hands of the 
 judiciary, is conferred by the third section of the fourth article of 
 the Constitution; which is as follows: 
 
 •* The Congress shall have power to dispose of and make all needful rules 
 and regulations respecting ,the territory or other property belonging to the 
 United tStates." 
 
The rules of legal construction are universal^ their purpose be- 
 ing to direct in the ascertainment of the true meaning and in- 
 tent of the instrument to which they are applied. There is not 
 one class of canons of interpretation applicable to constitu- 
 tional clauses, another to statutes, and still another, to private 
 instruments; much less is there one class for one section or arti- 
 cle of the Constitution, and another for another. Palpably, by 
 the most plain and obvious rules of construction, the clause here 
 considered has respect to the proprietary rights of the Unite<l 
 States and to these alone. The inhabitants of Utah, of Wyom- 
 ing or of Arizona, are not the territory of the United States ; 
 they are in no sense public property. They are human beings, 
 entitled, according to the principles upon which alone, it is af- 
 firmed, rightful government can be founded, to life, liberty and 
 the pursuit of happiness, in their own way under the rule: Free- 
 dom in each to do whatever is not inconsistent with equal free- 
 dom in every other. 
 
 The statute in question has nothing whatever to do with the 
 proprietary rights of the United States, unless upon the presump- 
 tion that the people of the Territories are chattels of the nation, 
 that they stand to the government in the relation of serfs, hav- 
 ing no rights which it is under either legal or moral obligation to 
 consider, or as apprentices whose personalities are merged in and 
 absorbed by the body politic to whicli belongs the unsold residue 
 of the land in the region they inhabit. It is a very violent pre- 
 sumption. There is nothing in the physical, the moral, or the 
 intellectual character, or phenomena of the people of the Terri- 
 tories by which they may be distinguished from those of the 
 States. There is nothing to indicate want of competency in them 
 to the regulation of their own civil affairs. It is not to be be- 
 lieved that, taking their lives in their hands and going forth into 
 the wilderness, to plant and build and hiy the foundations of 
 other increments to this broad republic, tliey, either consciously 
 or unconsciously, divested themselves of those qualities which — 
 unless our entire system of political ideas is a falsehood, and 
 the principles upon Avhich it was erected fallacies — are insepar- 
 able from humanity. 
 
 The framers of the Constitution were wise men. They had 
 just come out of a struggle for civil freedom, and appreciated the 
 force of tlie phrase "human liberty," more vividly, perhaps, than 
 the statesmen who are their successors. Every word of the in- 
 
strnment was carefully studied ; and especially those in which 
 legislative power was bestowed. They would not have conferred 
 upon Congress so extraordinary, so exceptional, so unprecedented 
 an authority as that to determine the social order, and fix the 
 domestic relations of the people of the United States, or any por- 
 tion of the same, and to sanction its enactments by fines and 
 imprisonments, in terms in which there was a shadow of equivo- 
 cality. Admitting the possibility of the vestment, by a Constitu- 
 tion, of such power in a legislative body, nothing but words 
 admitting of no other interpretation, and circumstances of the 
 most portentous description would justify its exercise. When 
 the framers of the Constitution wrote: "The Congress shall 
 have power to dispose of and make all needful rules and regu- 
 lations respecting the territory or other 'property belonging to 
 the United States," they did not mean " The Congress shall 
 have power to prescribe the social order of the people of the Terri- 
 tories, and regulate their domestic relations, and to enforce the 
 same by appropriate penalties." They knew, if the statesmen of 
 the present day do not, that no authority placed in the hands of 
 a body liable to be inflamed by popular bigotries, and swayed by 
 transient fanaticisms could be more perilous, or more apt to be 
 hastily and unjustly exercised, than the authority to dig beneath 
 the civil state and tamper with the social basis upon which it is 
 founded ; and they intended to confer no such authority. 
 
 There is no ground for the assumption, that the statesmen of 
 the centennial are any more sagacious or far-seeing than the 
 statesmen of the revolutionary period. There is no warrant 
 for the conceit that, in the presence of real or imaginary, civil, 
 social or domestic exigencies, the Constitution may be expanded 
 to mean, whatever, for the time being, a legislative majority 
 think it would have meant if they had been entrusted with the 
 making of it. There is no basis for the presumption that the in- 
 habitants of the Territories are less competent to comprehend, or 
 to make provision for their own civil, social or domestic needs, 
 tastes or requirements, than the inhabitants of the States, or that 
 Congress is any wiser in respect to the one than in respect to the 
 other. 
 
 There was a time when, under the pressure of a ferocious fan- 
 aticism, it became fashionable to characterize the people of the 
 Territories by the opprobrious title of " squatters," to regard them 
 in the light of unlicensed intruders into the public domain — not 
 
6 
 
 only without warrant, but in derogation of the common peace 
 and dignity ; and, under the name of " squatter sovereignty," to 
 reprobate and ridicule the notion that such vermin, either by 
 natural inheritance, or as elements of a republican common- 
 wealth, could constitute the tenants of liberties other than such 
 as Congress, in its clemency, permitted them to enjoy. In the 
 inflated party literature of the period, they appeared as aliens — 
 interlopers, having no right beyond that of naked existence, nor 
 freedom of action except by the sufferance of federal authority. 
 
 The enactment of such statutes and the rendition of such 
 judgments as those under consideration, indicate but too pal- 
 pably the effect of this species of literature upon the minds of 
 legislators and magit^trates, as well as of the people. While copi- 
 ously, in generalities, by congressional orations and judicial opin- 
 ions, the stated phrases significant of the natural prerogatives of 
 man are rehearsed, and the doctrine that the federal government 
 is one of enumerated powers reiterated, the ideas which properly 
 correspond with these generous maxims and sentiments seem 
 to have passed out of the legislative and judicial memory ; their 
 places being practically occupied by the conceit that human rights 
 are things of donation ; that free-agency is a commodity of which 
 Congress is the creator, or, at least the custodian, to confer or to 
 reserve according to its own supreme and irresponsible will and 
 pleasure. This is not the law of the land. It is not the liberty 
 to obtain which the revolution was prosecuted. It is not the 
 popular freedom which the Constitution was ordained to institu- 
 tionize and conserve. 
 
 It does not appear, from the opinion of the court, whether or 
 not the question of the constitutionality of the statute upon 
 which the indictment was predicated, was raised by the counsel 
 for the plaintiff in error. Its summary disposal, by the court, 
 in the following sentences, would seem to indicate otherwise : 
 
 " In our opinion," the Chief Justice remarks, " the statute immediately 
 under consideration is within the legislative power of Congress. It is con- 
 stitutional and valid as prescribing a rule of action for all those residing in 
 the Territories and in all places over which the United States have exclu- 
 sive control." 
 
 It is of no importance whether or not the question of constitu- 
 tionality was raised by the counsel for the plaintiff in error. In 
 a tribunal of last resort, in cases wherein action is predicated upon 
 a statute, the constitutional question is never absent. Officially, 
 
the court is the embodiment of the Constitution — especially cre- 
 ated to reflect its spirit, give to its clauses -just interpretation, 
 and to stand a sentinel between the people and the law-making 
 power, vigilant to ensure that, in its name, and under pretense 
 of its authority, no fanatical wrong shall be inflicted, no flagrant 
 injustice grow into a precedent, with its manifold progeny of 
 errors and injuries. 
 
 The question before the court, it is reported, was argued mainly 
 upon the proposition that the statute of 18G2, is adverse to the 
 principles of religious liberty as laid down in the following 
 words, in the first constitutional amendment : '^ Congress shall 
 make no law respecting an establishment of religion, or prohibit- 
 ing the free exercise thereof." Whether or not there is a relig- 
 ious question involved in the issue is immaterial to this inquiry. 
 
 Future generations of lawyers and legislators would, perhaps, 
 have grown up wiser if the Supreme Court of the United States 
 had found it convenient to cite the canons of interpretation 
 whereunder a constitutional clause which contemplates only 
 property, affords legitimate sanction to a statute which contem- 
 plates only persons. It is no trivial problem to be disposed of 
 properly in less than half a dozen lines : by a naked dogma, with- 
 out show of reason or of precedent. It is an important problem — 
 not only in its present, but in its possible other connections : 
 worthy the labors of the ablest intellects, of the profoundest 
 philosopher and the most impartial publicist ; and it is equally an 
 unhappy reflection upon the character of the court, whether it 
 did or did not comprehend its significance. Not so have the pre- 
 decessors of the present bench treated questions of constitutional 
 interpretation ; and when a constitutional clause which contem- 
 plates only public property is held competent to sustain a statute 
 which contemplates only private persons, there is a chasm to be 
 bridged, for the accomplishment of which enterprise, no amount 
 of constructive ingenuity can be more than sufficient. 
 
 It is an universal rule of interpretation, that grants of power 
 are to be construed strictly. Every express grant carries with it 
 the implication that no more is granted than is expressed. Con- 
 cessions of authority are therefore limitations of authority. They 
 mean that, before the concession there was no authority ; from 
 which it follows that there is none beyond what is conceded. It 
 is not an admissible presumption, in the law, that the authors of an 
 instrument left gaps which it devolves upon judges to supply. If 
 
8 
 
 after empowering Congress to make all needful rules and regula- 
 tions in respect to the public property, the Constitution had con- 
 tinued ; " and Congress shall have no power to make rules and 
 regulations in respect to private persons," the prohibition to in- 
 terfere with the social and domestic relations of the people of 
 the Territories, would, according to accepted causes of construc- 
 tion, have been no more distinct and palpable, no more a thing 
 of which courts are bound to take notice, than it is at present. 
 
 The question here to be presented is one of morals. It is the 
 most essential and fundamental of moral questions; that of the 
 right of a system of social and domestic order, established by the 
 consent of its factors, and in harmonious existence, to continue 
 unsubverted by exterior force, though clothed with a color of au- 
 thority. The question includes an inquiry into the ultimate law 
 of human society; the substratum and sanction of all laws of 
 convention — statutes and constitutions — and the basis of the 
 social, domestic and industrial economies ; in short, the unwrit- 
 ten common law of humanity. There is such a law. It is the 
 law which mankind represent, not in their doctrines, theories, 
 bigotries or sentimentalisms, but in their lives ; it is the law of 
 constitution and character, not of faith, dogma or opinion. 
 
 Philosophers, in all ages, have exercised their ingenuities in at- 
 tempts to formulate and establish an absolute standard of moral 
 quantities, and always without success ; each fresh systematizer 
 starting from the predicate, that all past efforts had proved abor- 
 tive. It needs an extensive study of systems, of so called moral 
 science, to comprehend the persistency of the inquest, and the 
 variety of the conclusions to which different scholastics have ar- 
 rived. Thus — for a few examples — Aquinas made the ultimate 
 rule in morals to depend upon ** the nature of things ; " Scotus 
 upon " the authority of God ; " Hobbes upon " the authority of 
 the state; " Puffendorff upon "right reason among men; " Cum- 
 berland upon "natural laws independent of experience;" Cud- 
 worth upon '* the eternal and immortal distinction of right and 
 and wrong in the mind of God ; " Malebranche upon ** the law of 
 universal order as it eternally existed in the Divine reason ; " 
 Shaftesbury upon the " moral sense ; " WoUaston upon " the 
 truth of things ; " Adam Clarke upon " the fitness of things ; " 
 Adam Smith upon " the principle of sympathy ; " Hume upon 
 " utility; " Le Rochefoucauld upon " interest ; " Helvetius upon 
 " self love ; " Kant upon " the highest happiness ; " Fichte upon 
 
"the perpetual striving of the mind to reahze its own nature; " 
 Hegel upon " the universal will ; " Edwards and Dwight upon 
 " benevolence ; " Hickok upon " an imperalive of reason," and so 
 on for quantity. 
 
 The reason for this diversity of opinion is, that no abstract 
 standard of collective morality is practicable. Humanity, infi- 
 nitely various, is only measurable by itself. The ultimate rule 
 of the moral is the actual. The relations into which communi- 
 ties of human beings spontaneously settle, by virtue of their in- 
 trinsic affinities and gravities, and under the impulsion of their 
 tastes, desires and necessities, is the right as regards such commu- 
 nities ; and, being the right, is their fundamental law. In other 
 words, the principle upon which society organizes itself is the or- 
 ganic principle of such society ; and, as such, is paramount to 
 every rule of convention or enactment. 
 
 Society is the spontaneous expression by the people of their 
 common character in relations. It obtains, wherever there is hu- 
 manity, its aspects determined by the common disposition. It 
 comes into being unconventionally, and can only be dissolved, 
 legitimately, by natural decay, illegitimately, by the intrusion of 
 exterior force. It is the basis upon which civil government is 
 founded ; and to protect its order, minister to its needs and inter- 
 pret and enforce its relations, are the conditions upon which the 
 title of government to maintain an existence depends. Such re- 
 lations are, therefore, the embodiments of its supreme law. 
 Hence, whether or not, an abstract standard for the admeasure- 
 ment of moral qualities is, in the nature of things, possible, with 
 such appraisals government can have no concern ; for it is not in 
 order for the creature to sit in judgment upon the creator. 
 
 Government is the conventional expression of the civil charac- 
 ter of a people in institutes — organic and statutory— and in ad- 
 ministration. In respect to authenticity, it differs from society in 
 this : that the latter is the voice of the inherent qualities — the 
 instincts — of the people, which are constant ; the former of their 
 opinions, which are variable. Mores — modes, manners, morals — 
 the words have all the same signification — are manifestations of 
 the fixed and durable ; as, on the other hand, constitutions, stat- 
 utes, precedents, decrees and resolutions, are of the fleeting and 
 temporary. The former are natural facts — the out-croppings of 
 underlying truth : the latter artificial contrivances ; like their 
 authors, transitory. The dynamics of the moral are the ana- 
 
io 
 
 logiies of those of the material universe. As no stream can rise 
 to a level higher than that of the fountain from which it flows, 
 so no government can attain to an eminence in virtue superior to 
 that occupied by its creators ; and every claim to such transcend- 
 ence only testifies how inadequately its ministers comprehend its 
 principles and purposes, and how unfit they are to be entrusted 
 with its authorities. 
 
 Even if it were, in the nature of things possible to endow a 
 government with power to prescribe to its subjects the terms up- 
 on which to order their social and domestic relations, and to 
 punish them in case of recusancy, every principle which is funda- 
 mental in a popular government would insist that such power 
 should be exercised only in conformity with the will of the com- 
 ponents of the body politic to be affected by such prescription. 
 Any other rule than this is a rule of despotism. If Congress 
 had the authority to enact statutes regulative of the personal 
 relations of the people of the Territories, and should exercise 
 such authority in any other way or to any other extent, than the 
 people of the Territories would legislate for themselves, it would 
 commit an act of absolutism more wild and mischievous than, 
 upon their loyal subjects, any of those " effete dynasties of the 
 old world," which are permitted to figure so extensively in the 
 United States, on the day of the national harlequinade, ever at- 
 tempted. There could be no course of reasoning presented, or 
 line of precedents consistent with the principles of human right 
 adduced, by which such an act could be justified or even excused. 
 
 But there is no such power. There can be none. No govern- 
 ment ever possessed it. No people ever conferred it upon their 
 government. No government, so far as history records, but that of 
 the United States ever attempted its exercise. It is altogether with- 
 out a precedent in the annals even of despotism. Nowhere but 
 upon this continent, and here, under the pressure of a fanaticism 
 that is as ignorant as it is conceited, and as irrational as it is in- 
 exorable, has the idea been conceived that it is the purpose and 
 the duty of government to burrow beneath its own foundations 
 and to disintegrate and re-order the basis upon which it was con- 
 structed. The dynamics of the moral are the analogues of those 
 of the material universe. In the latter, the result would be the 
 destruction of the edifice; can it be anything less than anarchy 
 in the former ? 
 
 The social condition is the common law of the land; a law 
 which antedates and dominates every law of convention. It is 
 
11 
 
 always present in all the tribunals where justice purports to be 
 administered. Here was the problem which it devolved upon the 
 supreme judiciary of the land to consider : A statute without a 
 single example, purporting to outlaw the domestic relations of a 
 people and to reprobate all who had entered into them; pro- 
 fessedly deriving its sanction from a constitutional clause with 
 which it had no congruity, opening a field of legislation and cor- 
 respondingly of judicial service hitherto unoccupied; and many 
 thousands of loyal citizens Avhose nuptial bonds, personal liber- 
 ties, domestic rights, legitimacy and title to inherit, depended 
 upon the decision. It was a problem requiring for its proper solu- 
 tion an analysis of the most fundamental of all laws — of the 
 principles of social order, the source and fountain from which 
 the government derives its existence and authority. Upon the 
 one hand was the social fact, which is and forever must remain 
 the law ; upon the other a statute having upon its face a false- 
 hood and, in its substance a despotism. How will the court de- 
 cide ? How did it decide ? Let it not be said that the magis- 
 trates of the judicature of last resort in this great republic, are 
 swayed from, their equilibriums by the fantastical clamors of silly 
 women ; or that they permit their reasons to be overcome by 
 communistic harangues, delivered by well-dressed visionaries in 
 lecture halls, or spouted by vulgar ruffians from the steps of pub- 
 lic edifices ; or that they accept the platform of some party as an 
 authority superior to law or reason. But where, unless from one 
 or another of these sources, they obtained the instructions upon 
 which their four lines of dictum were predicated, it is hard to. 
 conceive. 
 
 Special customs, in matters of liuman intercourse ; the customs 
 of cities, boroughs, districts and villages, when they have become 
 fixed by time, have always been respected by courts as the law of 
 the region in which they obtain, whether or not there are general 
 statutes of the realm or doctrines of the common law with which 
 they are in conformity. The term "immemorial custom," is 
 applied to that which, when shown to exist, is, in respect to 
 the subject matter, the highest law. In old countries, where tlie 
 origin of the custom, as well as of the people, is beyond the mem- 
 ory of the living — admitting of the presumption that the two had 
 a common beginning — it is not, practically, incorrect. The rule 
 is founded upon the idea that the custom is expository of the 
 character of the inhabitancy ; of which immemoriality is one of 
 
the evidences. In a new country, as the United States, there are 
 no customs of which it may, in strictness be said " the memory 
 of man runneth not to the contrary," and, hence, here, the term 
 is not a complete expression of the principle. Every custom 
 which is coeval with the community in which it prevails complies 
 with the spirit of the rule under which immemorial customs have, 
 in all ages, been held as the law. 
 
 The custom of plural marriages — polygamy — had its beginning 
 with the birth of the community within which it prevails. It is 
 therefore, to every legal intent and purpose, an " immemorial cus- 
 tom." It is the fundamental law of that community, and, as such 
 is entitled to be judicially regarded. Whether or not the point 
 was presented in this form, in the arguments of the counsel, does 
 not appear from the delivered opinion. It may be said that, in 
 order to take advantage of the local custom, it is essential that it 
 be specially pleaded. This, in civil cases, at nisiprius, is true in 
 general. But in the case before the court, it was the custom it- 
 self, which constituted the basis of the litigation. It was a crim- 
 inal proceeding, in which the question to be determined was : Has 
 this particular custom a right to exist ? The court knew what it 
 was called upon to decide, and what it was deciding. It was not 
 ignorant of the fact that, in determining the case of the plaintiff 
 in error, it was dictating the future of thousands of men, women 
 and children ; decreeing whether or not, in legal contemplation, 
 in time to come, the men of a great and orderly community, were 
 to be counted criminal profligates, the women criminal prostitutes 
 and the children nameless illegitimates. 
 
 The court had the question before it. Substantially, it was the 
 question it decided. It was not an unimportant question. The 
 difference between human happiness and human misery is a mo- 
 mentous difference — a difference as wide as the human mind has 
 the capacity to conceive. The annals of litigation, throughout all 
 the ages, may be searched in vain for another instance in which 
 the alternative between happiness and misery, to so great a mul- 
 titude of human beings, was immediately involved. 
 
 Between official and individual knowledge there is a debatable 
 laud free to judicial discretion. A court may know much that it 
 does not know, and not know much that it knows. The court, 
 in the case in question, may have preferred to be ignorant of the 
 fact that the plaintiff in error was one of a large community, the 
 legal status of whose members would be determined by the con- 
 
13 
 
 elusion to which it should arrive. On the other hand, inferring 
 from the tenor of the decision, the judges were not, by any means, 
 ignorant of — what outside of judicial quarters, might pass for a 
 related circumstance — that, infesting a region somewhere between 
 the Mississippi and the Pacific, there is a band of miscreants, 
 wicked beyond all who dwell elsewhere within the boundaries of 
 Christendom. Also that these interlopers, squatters upon the 
 public domain — which they have the insolence to turn into fields 
 and gardens, and to satisfy their unhallowed appetites with the 
 produce of the same — have a religion, which is neither Method- 
 ism nor Presbyterianism, nor Episcopalianism, nor Baptism, nor 
 CongregationaHsm, nor Lutheranism, nor Quakerism, nor any 
 other of the isms or sub-isms which prevail in the other States and 
 Territories; and which, therefore, is beyond description corrupt, 
 ungodly and infamous, and must have been adopted through the 
 direct instigation of the arch-enemy of mankind. Furthermore 
 that these reprobates, in order that they might practice their un- 
 holy rites, without interruption by the good and pious — who con- 
 stitute the remainder of the citizens of the republic — retired into 
 the wilderness, a thousand miles from the abodes of civilization 
 and Christianity, and thereby became obnoxious, of evil example 
 and a pregnant source of infidelity, misbelief and corruption to 
 the people at large and to christians in particular ; by these means 
 implanting and instituting a national sin to the intense disgust 
 of the Almighty, who may, any day, be expected, in punishment 
 thereof, to descend in person, without notice, to wipe out and 
 eradicate, without discrimination, old and young, righteous and 
 wicked, not sparing even Congress, the President nor the Judi- 
 ciary. 
 
 To fill to overflowing the cup of their abominations, these re- 
 probates, it is understood, have malignantly taken to imitating 
 the example of holy Jacob and David and Solomon, and multi- 
 plying their marriages. This proves them — as it did the said 
 holy Jacob and David and Solomon and the saints and patriarchs 
 of the elder dispensation — beyond hope vile and incorrigible. 
 The notion — which is one of theirs — that every woman is en- 
 titled to the privilege of bearing legitimate children, is proof of 
 their inherent licentiousness. The practice which they pursue of 
 absorbing all the females of the community, so that none shall be 
 left over for prostitution, demonstrates how utterly they are de- 
 praved. The idea wiiich they entertain, that the fraction of a 
 
14 
 
 husband with a home, is more wholesome for a woman than 
 neither husband nor home, shows how destitute they are of all 
 the finer feelings of humanity. 
 
 It is not to be wondered at, considering the circumstances, that 
 every sentimental virgin of mature age in the land, no matter 
 how distant from the scene of operations, feels her own virtue im- 
 periled so long as such depravity is allowed to go unexterminated. 
 It is not surprising that strait-laced members of Congress, who, at 
 once, console themselves for the absence of wives left at home 
 and set a laudable example of economy to their children, by hav- 
 ing a mistress, who keeps herself, in each of the departments^ 
 should feel the urgent need of doing something signal, as well 
 to drag the nation from the verge of the abyss into which it is 
 preparing to plunge, as to demonstrate their own domestic loyal- 
 ty, and their indelible hatred of every form of luxurious indul- 
 gence. The people of the United States do not appreciate how 
 highly rectified their legislators are — how unsullied in mind and 
 irreproachable in conduct ; and it is well, perhaps, that they do 
 not; for, if by any means, a view of such quantities of purity 
 should come upon them unawares, a hasty demand for the services 
 of a legion of coroners might be the result. 
 
 A relic of barbarism at a distance, and of which his sole knowl- 
 edge is obtained through exaggerated rumors and statements 
 which, coolly examined, would disprove themselves, is enough to 
 stir to its lowest depths the soul of a philanthropist. The Mor- 
 mons of Utah have had against them two uneasy classes, which 
 do not in general co-operate ; the orthodox pietistics to wit, and 
 the unorthodox humanitarians. They are heathens to the one 
 and to the other barbarians ; and as the Mormons are obdurate 
 in their sins, the only reformatory process equal to the exigency is 
 their eradication. The members of these uneasy classes have votes; 
 and, as beech-nuts to a bear, so votes to a demagogue. These 
 aye the instrumentalities through which clamors are raised ; that 
 which passes for public sentiment manufactured; fanaticisms in- 
 flamed, and unjust and barbarous statutes, creating artificial 
 crimes and menacing their commission with savage penalties, en- 
 acted. 
 
 Without doubt the Judges of the Supreme Court had been 
 properly informed of the existence and the enormities of this 
 nest of reprobates ; how the moral sense of the good people was 
 outraged by their presence ; what a plague-spot they were upon 
 
15 
 
 the land ; how all Christendom held its nose when they were 
 mentioned, and how God was getting out of patience at the slow 
 progress that was making in their extermination. Without 
 doubt they felt a profound sense of the obligations they were 
 under ; not to human right or the principles of universal justice ; 
 not to the body corporate and politic known as the United States 
 of America; not to the plaintiff in error or to those in like man- 
 ner to be aifected ; not to themselves as individuals, whose names 
 might be honored or disparaged in the future accordingly as their 
 acts, tried by the talisman of time, should be judged wise or 
 otherwise; but to popular sentiment. Congress had done its 
 duty — placing the obnoxious under the ban of a common out-* 
 lawry; the President had nobly responded to the enlightened 
 spirit of the times — appointing judges warranted to be a terror to 
 the evil-doers ; the courts below had executed their mission with 
 exemplary faithfulness — so ruling as to ensure conviction to the 
 accused, and nothing remained but for the tribunal of last resort 
 to manifest like allegiance to the laws of propriety ; like respect 
 for the amenities of civilization ; like reverence for the Christian 
 faith, and like adequacy to the situation, by crowning the work 
 which the others had so felicitously begun. Did it prove recreant 
 to the trust which had been reposed in its man-millinerism ? 
 Perish the unworthy suspicion ! Salus populi est suprema lex. 
 Are human rights or the principles of justice, or the maxims of 
 jurisprudence, or the relations of society, or immemorial usages 
 to be allowed to stand as impediments where a moral pestilence 
 prevails, aplague-sjjot which threatens universal contamination is 
 to be cauterized, and a crying national sin eradicated ? The 
 court did not falter — it did not even hesitate. Like a headsman 
 whose daily use is in capital operations, it applied the white-hot 
 branding-iron with a coolness which, in contrast with the calidity 
 of the implement, was truly admirable. 
 
 In the foregoing, it is alleged that the Act of Congress of 1862 
 carries a falsehood upon its face. This needs an explanation, to 
 which a few sentences will have to be devoted. Marriage is a do- 
 mestic relation entered into by man and woman, by private con 
 tract, which, in Protestant countries, is called " civil," to distin- 
 guish it from the mode of its completion in Catholic countries, 
 where it is regarded as a sacrament. The essence of the relation 
 is its contract quality. Any two persons of different sexes, of 
 suitable age and sound mind, may thus contract, and the agree- 
 
16 
 
 menfc is binding, according to its terms, upon the parties. The 
 terms are fixed by the custom of the society in which the parties 
 are included, and such custom is the law. In the United States 
 and throughout Christendom, custom has affixed to the nuptial 
 compact a life duration, and upon this basis it is legislatively pro- 
 tected and judicially defined and enforced. Except in the case 
 of a single community, custom, in the United States, prescribes 
 one wife at a time as the proper domestic allotment ; and, ac- 
 cordingly, where such is the rule, the marital covenant is monog- 
 amous in its conditions. The husband promises to marry no other 
 woman, the wife, to marry no other man ; and this agreement is 
 enforced under statutes which provide to annul fraudulent after- 
 marriages, and to punish the perfidious party for the commission 
 of a crime, for centuries known to criminal jurisprudence as 
 ** Bigamy." 
 
 Bigamy is a fraudulent after-marriage by a person having a 
 wife or husband living and undivorced. The essence of the 
 crime is wilful breach of an express contract, and fraud committed 
 upon one or more innocent parties. It is a crime of perfidy, and, 
 as such, is properly regarded with dread, and its perpetrator with 
 repugnance. Between this felony and the polygamy in Utah, ex- 
 cept in the naked fact of pluralism, there is not the remotest re- 
 semblance; and yet, in the act of Congress of 1862, the two are 
 dishonestly confounded. The words of the act are as follows : 
 
 " Every person having a husband or wife living who marries another, 
 whether married or single, in any Territory or other place over which the 
 United States have jurisdiction, is guilty of bigamy." 
 
 It will be seen that the act describes polygamy, gives it a 
 name which, for centuries, the criminal law has specifically affixed 
 to an infamous offense to which it bears no likeness, and, as such 
 menaces it with severe and disgraceful penalties. And, strange as 
 it may seem, this misnomer — which would be ludicrous if it were 
 inadvertent, but, being intentional, is cruel — is adopted by the 
 Supreme Court of the United States, in a laborious attempt to 
 find a sanction for the anomaly it seeks to establish. 
 
 The Judges of the Supreme Court of the United States are 
 lawyers. All of them have the experience of years of practice at 
 the bar, and several of them upon the bench before they attained 
 to their present positions; and, without doubt are more or less 
 conversant with criminal forms and definitions. They could not 
 otherwise than have known that bigamy was a crime at common 
 
IT 
 
 law before it became a statutory offense ; that its characteristic 
 quality is the fraud in which it is committed ; that neither in 
 England nor in the United States, have bigamy and polygamy 
 been legally regarded as allied acts; and that in the few States and 
 Territories where the latter is defined and forbidden, it is treated 
 as a misdemeanor distinct from the former ; and yet there is 
 throughout the opinion of the court a visibly painful effort to 
 make it appear that the two are identical. Thus the court re- 
 marks : 
 
 " From that day " — 1785 — " to this, we think it may safely be said there 
 never has been a time in any State of the Union where polygamy has not 
 been an offense against society, cognizable by the civil courts, and punisha- 
 ble with more or less severity." 
 
 This is simply untrue. In not many of the States has polygamy 
 been forbidden by statute ; and in the most, if not in all, the 
 punishable offenses are defined and the penalties prescribed by 
 acts of the Legislature. In all the States and Territories bigamy, 
 and, in several of them, by recent acts, polygamy is prohibited. It 
 is not agreeable to witness the supreme judiciary of the Kepublic 
 laying down the doctrine that it is one of the functions of civil 
 government to prescribe the conditions upon which domestic and 
 social order are to be maintained ; for that is proof of ignorance 
 of the principles upon which civil governments are founded It 
 is still less agreeable to witness the same tribunal laboring to erect 
 a criminal common law upon the basis of the acts of local legisla. 
 tures; and this especially when such acts are the creatures of the 
 imagination; for that is an indication of something more to be 
 deprecated than ignorance. 
 
 ** Marriage," says the court, *^ while, from its very nature, a 
 sacred obligation, is nevertheless, in most civilized nations, a civil 
 contract, and usually regulated by law." AVhatever else it may 
 be, marriage is a private contract, the legal status of which is not 
 affected by sacred or sentimental considerations ; nor do the ethi- 
 cal principles which apply to it differ from those which are ap- 
 plicable to other compacts upon mutual considerations. If the 
 parties are of the proper sexes, the proper age, of sound mind 
 and contracting disposition, the agreement is interpretable and — 
 if untainted by fraud or deceit — binding in accordance with its 
 conditions. One of these conditions usually is, that the parties 
 shall live and cohabit together, so long as they both survive. 
 
 The right and the custom of contract antedates government, 
 and is more authentic. A fundamental civil maxim forbids 
 
18 
 
 government to do ought to impair the obligations of contracts. 
 Statutes by which such obligations are enfeebled are pronounced 
 invalid. The principle upoli which the maxim is based includes 
 the denial to legislatures of authority to do ought to diminish 
 the free agency of the citizen in contracting. Therefore, by the 
 same rule, statutes whose effect is to impair or diminish such free 
 agency are unlawful. To the operation of this principle, there 
 can be no valid reason why a marriage contract, untainted by 
 fraud and entered into in conformity with the custom of the com- 
 munity wherein it is executed, should be held to constitute an ex- 
 ception. If such contract is, in any sense the basis of a *' sacred 
 obligation," so much the more reason why, especially after it has 
 been consummated by cohabitation, secular hands should not be 
 laid upon it to work its outlawry and dissolution. There are 
 those Avho profess to have penetrated deeper than ordinary mor- 
 tals into the counsels of heaven, and to have obtained clearer 
 views of the divine will in respect to the duties and relations of 
 life; but they are persons whose suggestions it is not safe for 
 such as are appointed to administer justice to accept. 
 
 And here — assuming that the Bible is the revealed word of God, 
 given to mankind for their instruction, by precept and by exam- 
 ple — it is proper to inquire into its teachings in respect to mar- 
 riage. " The chosen people of God," as the Bible relates, prac- 
 tised polygamy from the days of the founder of the race, Abra- 
 ham — who was a polygamist ; as they do to this day, in countries 
 where polygamy is customary. Polygamy is recognized as lawful 
 by the Levitical precepts. The example of the rulers of the land 
 and the leaders of society was in its favor, and throughout the 
 Old Testament, there is not a word in its condemnation or to its 
 disparagement. In the Pauline Epistles of tlie New, it appears 
 that the author — who believed the end of the world to be near at 
 hand — was opposed to marriages; and except in exceptional 
 cases, advised the believers against them. As a measure of pre- 
 caution, however, he was of the opinion that a presbyter, or 
 teacher of religion, should be a married man ; or, as the not 
 altogether candid translation expresses it, *' the husband of one 
 wife.'^ It was, at the most, a special and limited dispensation 
 in favor of the clergy — the reasons for which, in the light of 
 modern experience, are too obvious to need explanation. By 
 means of free interpretation and abundant inference, neverthe- 
 less, these five words have been discovered, by theoretical ecclesi- 
 
19 
 
 astics and sentimental millenarians, to embody a vast code of 
 doctrine, instruction and commandment against marital plural- 
 ism ; wherein the extremest wrath of God is menaced again&t of- 
 fenders, and the direst judgments suspended over those nations 
 wherein it is permitted. This is simply absurd. And yet absurd 
 as it is, it has served as the basis of a fiery fanaticism, a violent 
 agitation and a bitter persecution, under the influence of which, 
 a statute has been passed which, for heartless malignity, may 
 search the books of the law in vain for a parallel. 
 
 This, however, is not all that the New Testament contains 
 touching the marriage relation. Again and again in the Gospels 
 — and this, be it remembered, in a polygamous country — is the 
 permanency and the inviolability of the marriage relation af- 
 firmed. For one cause, and for one cause alone, could it be right- 
 fully abrogated. This, if the author of Christianity — " the Head 
 of the Church" — is to be regarded as its rightful law-giver, is the 
 fundamental law of Christendom upon the subject. A marriage 
 contract, a polygamous marriage contract, except upon a single 
 ground — the adultery of the wife — is pronounced indissoluble by 
 human agency ; and this in terms so direct and distinct that to mis- 
 take their meaning or to break their force by interpretation is im- 
 possible. Why did not the Supreme Court of the United States, 
 while pronouncing " marriage from its very nature a sacred obli- 
 gation," take a moment to consider upon the conditions to a sa- 
 cred obligation ? Is the obligation of marriage only sacred as be- 
 tween the parties to the contract, while to legislative bodies and 
 judicial courts, it is so profane and secular that, by a single 
 flourish of the pen, and without an inquiry into the character or 
 the will of their parties, thousands of marriage contracts may be 
 annulled, and such parties outlawed and punished for having en- 
 tered into them ? 
 
 The decision of the court is broader in effect than, upon its face 
 it appears. It is a rule of the law that power over a particular 
 subject matter, once vested in a legislative body, is plenary, in re- 
 spect to such subject matter. The authority to enact statutes to 
 forbid plural marriages and to punish the parties to them, implies 
 the authority to provide for the prosecution and punishment of 
 all who, whenever married, continue to live in pluralism ; and 
 thus, by a single penal enactment, a whole loyal people, living in 
 content and harmony, may be transformed into felons, their do- 
 mesticities dismembered, a horde of helpless women turned home- 
 
20 
 
 lees upon the world, and a mnltifcude of unoffending children bas- 
 tardized. Nor are the fanatical men and silly women, who gen- 
 erate the force which manifests itself through such statutes and 
 such decisions, content with what they have obtained ; and Con- 
 gress is flooded with petitions praying for such further legislation 
 and more extreme measures, as that the representatives of the 
 great national sin and last relic of barbarism shall have no rest- 
 ing place but in houses of correction, and thus the plague spot 
 be removed from the land. This consequence was before the 
 court when it rendered its decision. The court could not other- 
 wise than have been aware of the legal effects of the decree it pro- 
 nounced. For all the untold and indescribable misery that has re- 
 sulted and that may result from past and future legislation upon 
 the subject, it is responsibly. Placed where it is, to interpose a 
 firm and inflexible impediment to tides of popular passion and 
 floods of sectarian and sentimental fanaticism, it has given way 
 at the very time and the very spot when and where it should have 
 been most steadfast and resolute; and has, thereby, not only 
 missed a supreme opportunity, but has placed upon record an en- 
 during testimonial of its inadequacy to the obligations of the trust 
 it holds and the seat it occupies. 
 
 In one sense, at least, the marriage bond includes a sacred ob- 
 hgation. It is an alliance, the status quo ante of which cannot 
 be restored by its annulment. This may be of little moment to 
 the male, but it is of incalculable importance to the female 
 party. She is made homeless. She is an outcast in the eye of 
 the law which has made her a criminal ; and in the estimate of 
 society, is depreciated. If there can be a duty resting upon a 
 court of justice more sacred than another, it is the duty to inter- 
 pose and guard the helpless against the machinations of the ma- 
 lignant. 
 
 It may be said that courts, in laying down the law, are not 
 bound to consider the consequences of their decisions. This may, 
 in a sense, be true ; but it is true also that courts, in determining 
 how justice should be administered, will, if they do their duty, 
 consider the consequences of a decision one way or another, as a 
 means of finding out what is just. It is proof of the wrongful- 
 ness of a judgment when its effect is to inflict a great and mani- 
 fold general injury. The fact that a rule works oppression is 
 proof that it is wrong ; proof that an element has been omitted 
 from the analysis, by which the result is depraved. The court 
 
had eyes enough to see one side of the situation, if it had not 
 enough to see the other. It had no difficulty in discerning the 
 wants of those whose interest in the matter was purely fantastical 
 and visionary ; it failed altogether to perceive the needs of those 
 whose interests were vital and momentous. Its whole body was 
 full of light, and warmed with sympathy toward such as were 
 not, it was shrouded in darkness and chilled with austerity toward 
 those who were to be ground to powder and trodden into the 
 earth, as the consequence of its decree. If its mission had been 
 to pronounce upon the fate of a horde of rats, instead of that 
 of a colony of human beings, it could not have manifested more 
 tenderness in behalf of those with whom its sensibilities were in 
 unison, nor more indifference to the sufferings of those whom it 
 delivered over to the executioner. 
 
 It does not follow because, in times of dominating ecclesiastical 
 influence, and under the auspices of a church — which always 
 discountenanced marriage, and surrounded it with arbitrary rules 
 and restrictions ; some of which still remain — the British parlia- 
 ment passed an act to prohibit and punish polygamy, in a coun- 
 try where there was no polygamy, that it is just for the Congress 
 of the United States to enact statutes which, in effect, dissolve 
 the marriages of a community where polygamy has obtained, and 
 institute disorder through the outlawry of its domestic relations. 
 Here is a difference so broad that it would seem as if no extraor- 
 dinary exercise of judicial perspicacity were needed for its com- 
 prehension. The statute of James the First was simply brutum 
 fulmen — a piece of harmless theological thunder. It dissolved 
 no pluralities ; for there were none to dissolve. It prevented none; 
 for there was no tendency to their contraction. The extreme 
 punishment which it denounced against offenders — that of death 
 — is proof of the barbarism of the period and the bigotry of the 
 church to which it owed its origin. It is no credit to the Supreme 
 Court of the United States to have unearthed this still-born and 
 loathsome remain of past ecclesiastical despotism and regal super- 
 stition, and brought it to light, in the character of a law of opin- 
 ion and conduct, in a land which so loudly professes to be eman- 
 cipated from every form of prelatical and sacerdotal bondage. This 
 is fishing in waterless pools and bringing forth the corpses of the 
 reptiles that had famished there, to be resuscitated and recom- 
 missioned for more mischiefs and fresh empoisonments. 
 
 It does not follow even if there had been polygamy in England 
 at the time, that the law of the age of that superstitious pedant 
 
22 
 
 James the First is binding as a precedent upon the Supreme 
 Court of the United States, or is a justification of its decrees in 
 any case or under any circumstances. From the theologico-ethical 
 notions of that period, the only safe rule is a wide departure. The 
 parliament of Great Britain, of that era, may have been no wiser 
 or freer from unwholesome influences, than the parliament of the 
 United States of the present; and of the latter it may, not with- 
 out justice, be said, that it is to be hoped its successors of two 
 centuries in the future will be too prudent to follow many of its 
 examples. At any rate, the fact that such a statute was passed 
 at such a time, or at any other time, under such or any other au- 
 spices, is as frail a basis upon which to found a judgment, by a 
 tribunal in this age and country, in a matter of incalculable im- 
 portance to a great community, and involving their dearest rights 
 highest interests and most sacred affections, as could well be dis- 
 covered ; and it is to be hoped that the court had the grace to feel 
 a sense of littleness when it made the citation. It is the paltri- 
 ness of pettifogging arrogance thus to grope among the relics of 
 dead barbarisms to find excuses for oppression. 
 
 It would seem to be matter of doubt, judging from the tenor 
 of the decision, whether the court very well understood itself ; 
 while in respect to its understanding of the relations between so- 
 xjiety and government, there can be no doubt whatever. While 
 in one sentence it gives the information that society is founded 
 upon marriage, and in the next that government is founded upon 
 society, in the very next it conveys the astounding intelligence 
 that it is within the legitimate power of government to take ju- 
 risdiction of the fabric of society and to appoint the relations in 
 which its factors are to stand to each other. According to the 
 deliberate opinion of the Supreme Court of one of the most en- 
 lightened of modern nations, society and government hold to 
 each other the positions of mutual creators and created. Society 
 creates government ; government, by way of returning the favor, 
 turns round and creates society. It does even more than this, it 
 dives to the very bottom of things and ordains the relations upon 
 which society rests for its foundation. Hints of another such 
 an interchange of functions are to be found nowhere else than 
 in some of the fantastical — sometimes called heathen — mytholo- 
 
 This is communism. It is the fundamental doctrine of modern 
 communism that government is the creator of society, from which 
 
23 
 
 ifc infers — and logically — that the jurisdiction of government com- 
 prehends not only the domestic, commutual and proprietary re- 
 lations of the social elements, but their unrelated acts, conduct, 
 habits, pleasures and indulgences. It is the doctrine which the 
 malignant charlatan Phillips delivers in lecture halls to applaud- 
 ing audiences, and the vulgar ruffian Kearney roars in the sand- 
 lots to auditors equally enthusiastic ; and it is the doctrine which 
 tramps and vagabonds, in their own characteristic way, carry in- 
 to effect when they enter houses and demand entertainment, des- 
 troy the labor-saving implements of the agriculturalist, cast rail- 
 way trains from their tracks to rob the passengers, and burn the 
 depots and rolling-stock of railway companies. It is a reflection 
 of the spirit of the weak, the exhausted, the morbid and the de- 
 preciated, bent to make it the law that there shall be none braver, 
 stronger, richer or more potent than themselves. It is the faith 
 of the leveler, who clamors for uniformity ; who would obliterate 
 the difference between the sexes ; would compel all the young to 
 be educated according to a common measure and model ; would 
 equalize estates by division or by destruction ; would war against 
 property honestly acquired and tax the industrious to support the 
 idle; would abolish all the great industrial enterprises on account 
 of the incidental disparities of which they are the occasion, and 
 institute a regimen of hate, envy and anarchy. To this cause 
 the Supreme Court of the United States has, on several occasions, 
 afforded efficient assistance, and in no instance more ill-advisedly 
 than in the case here considered. 
 
 The decision of the court is broader in its consequences, per- 
 haps, than even itself has suspected. It places in the hands of 
 civil governments everywhere, absolute power over the marriage 
 relation. 
 
 The relations of society, domestic, commutual and economical, 
 are, all of them, in substance, contracts upon conditions, express- 
 ed or implied, and for mutual considerations. If one form or 
 class of such contracts, and the right to enter into them, is with- 
 in the scope of the written law, so, for a common reason, are they 
 all ; for they all have a common purpose : to contribute to the 
 convenience, prosperity and happiness of the people. For the first 
 time in the history of jurisprudence, the Supreme Court of the 
 United States expresses the opinion that, at least in one instance, 
 the relations of society are within the scope of the written law. 
 Savs the Chief Justice : 
 
24 
 
 " There cannot be a doubt that, unless restricted by some form of Consti- 
 tution, it is within the legitimate power of every civil government to deter- 
 mine whether polygamy or monogamy shall be the law of social life under 
 its dominion." 
 
 The jurisdiction of the written law, is limited to that which it 
 has created or erected. If it has authority to fix the terms of 
 the domestic rehitions, it is because it has previously established 
 or sanctioned such relations. Now, in all the records of legislation, 
 organic or statutory, there is not to be found a single section or 
 clause by which marriage is ordained. Even the Levitical law, 
 which antedates all other known written institutes, takes the do- 
 mestic relations as they pre-existed its delivery. 
 
 The unsound doctrine, in the foregoing, begins with the palpa- 
 ble fallacy that there can be no law of higher authority than 
 that which is written in constitutions; and continues with the 
 equally faulty precept that legislative power is absolute in cases 
 in which it is not limited by express constitutional provisions. 
 This makes human free, agency a matter of donation ; and — in the 
 absence of paramount written provisions to the contrary— reduces 
 all the relations of life beneath the jurisdiction of the legislature 
 ass3mblies And, as a legislative power, when once vested is 
 plenary, it makes every mode of contracting lawful or unlawful 
 accordingly as such assemblies may see fit to prescribe. Wedlock 
 ceases to be a natural right or an ordinance of divine appointment, 
 and becomes a franchise which legislatures may, at their discre- 
 tion, confer or withhold. According to this doctrine, it is as well 
 within the power of these bodies to abolish monogamy as polyg- 
 amy. This will be acceptable information to a large number of 
 active social reformers in the United States, who find the marital 
 league a bondage so severe and humiliating, a yoke so galling and 
 oppressive, and a cause of so many evils and miseries, that they 
 are unable to restrain their cries for relief through its abolition. 
 Nor is there anything irrational in looking forward to .the time 
 when politicians will find it for their interest to sympathize with 
 these sufferers under the despotism of custom and prejudice, as 
 they have with others in similar distress ; for if there is anything 
 with which a politician who needs votes will not sympathize, that 
 thing is yet to be discerned. When this state of things shall have 
 arrived, legislative bodies, judging from the history of the past, 
 will have no difficulty in finding reasons why the voice of the 
 oppressed should be heard and the prayers of their petitions 
 
25 
 
 granted ; nor will judges have any in concluding that laws to 
 abolish wedlock, and to punish those who indulge in it are strictly 
 within the province of legislative authority. 
 
 There is no extravagance in this anticipation. The indictments 
 which sexual communism— free love— brings against the state of 
 society of which singular marriages are the basis, are severe; and, 
 in many respects their truth is beyond denial. If, on account of 
 the elements of social anarchy it includes, polygamy should be 
 forbidden, a thousand times more should monogamy. The char- 
 acteristic facts of the latter, which defy concealment, ^u'e domes- 
 tic infidelity and prostitution. There is ground enough upon 
 which to agitate ; and when the order whose calling it is to abol- 
 ish have completed the works now in progress, it is not unreason- 
 able to apprehend that the marriage relation will come next in 
 their line of attack . It would be but another step in that com- 
 munistic progress to which statesmen and jurisprudents have al- 
 ready afforded so large a measure of aid and encouragement. 
 
 As one of its objections to polygamy, the court ventures the 
 opinion that the principles of civil government vary with the 
 character of the domestic relations of the people. Says the 
 Chief Justice : 
 
 " In fact, according as monogamous or polygamous marriages are allowed, 
 do we find the principles on which the government of the people to a 
 greater or less extent rests." 
 
 In support of this conclusion he cites Dr. Francis Lieber, a 
 philosopher, who infers from the fact of certain coincidences, 
 that a certain form of domestic order is correlative with a certain 
 form of civil institutes : in other words that polygamy and arbi- 
 trary government are inherently allied. If it could be shown 
 that monogamy and popular government were invariably, or even 
 generally, coincident, the argument would have some validity. 
 As the case stands, it has none whatever. There is no evidence 
 that the principles of civil government vary with either domestic 
 or social conditions. Principles do not change. Forms and rules 
 of administration differ, as the civil character of one people 
 differs from that of another ; but there is nothing intrinsic in 
 the unlikeness between the custom of singular and that of plural 
 wedlock to indicate the need even of difference in forms and 
 rules of administration. 
 
 The notion intended to be conveyed appears, from the context, 
 to be that a more vigorous and absolute regimen is required 
 
26 
 
 for the maintenance of social order in a polygamous than in a 
 monogamous community. Proof that such is the fact in the 
 United States has not yet appeared. More than anything else, 
 the Mormons of Utah have presented the similitude of a flock 
 of sheep surrounded by a horde of wolves. Amid the anarchy, 
 terrorism and crime that has made horrid the vast region around 
 where they are located they have been the one orderly com- 
 munity. They have divided with the aborigines the office of 
 serving as subjects of lawless depredation. An irregular war- 
 fare of the most unscrupulous character has been prosecuted 
 against them from the beginning of their history. Ecclesiasti- 
 cal bigotry has laid down the rule which unlicensed ruffianism 
 has carried into execution. Domineering superstition, from the 
 pulpit, the platform and the press, sounded the notes of assault ; 
 to which outlawry, hungry for plunder and thirsty for anarchy, 
 made haste to respond. Venal authors have been hired to in- 
 vent slanders to justify the outrages that have been committed. 
 Scores of books have been written, thousands of sermons preached, 
 and millions of newspaper diatribes published, by persons who 
 never saw a Mormon, to prove them the most abandoned of 
 mankind. Tale-bearers have gone among them in search of the 
 materials of scandal ; finding of course, all they had pre-deter- 
 mined to discover. Under a charge of barbarism, a system of 
 unlicensed barbarity has been prosecuted against them, disgrace- 
 ful to civilizLition and disreputable to Christianity. They have 
 something of which to complain. They would be either more 
 or less than human if they did not, now and then, manifest a 
 sense of injury and a feeling of resentment. If there is any- 
 thing in their conduct to merit surprise it is their forbearance. 
 They are sincere believers in their mode of worship and plan of 
 social and domestic order, and suffer as other believers suffer 
 when things which they hold sacred are disparaged and pro- 
 faned. Whatever abstract opinions others may entertain of their 
 system, it is agreeable to them. Under it, they enjoy harmony ; 
 and it might not unsuitably be asked : Has not the government 
 of the United States enough on its hands of communities in dis- 
 order, that it needs to turn upon and inaugurate anarchy in an- 
 other ? Government may create a solitude and call it peace ; it 
 may institute confusion and call it order ; but such counterfeit 
 peace and order are as horrid as the genuine are excellent ; and 
 a government which unadvisedly breaks up an established social 
 
27 
 
 condition upon some procrustean theory of uniformity, manifests 
 thereby its total unfitness to be entrusted with any species of 
 authority. 
 
 The Supreme Court of the United States was not created to 
 sit in judgment upon sentimentaUsms. With the opinions which 
 one class, order or integer of a people may entertain of another, 
 it has no legitimate concern. There is nothing in its commission 
 which constitutes it a judge of the abstract merits of states of so- 
 ciety ; such merits being matters of which there is no known 
 standard by which they may be estimated. Nevertheless, as the 
 court, in its wisdom, has seen fit to regard social qualities as with- 
 in its jurisdiction, and to make its views thereon the basis of a 
 decision of almost unprecedented portent, a brief comparison of 
 the state of society which it approves with that which it condemns, 
 will not be impertinent. 
 
 The factors of every mode of communital arrangement regard 
 their own as the true expression of the perfect in principle. Prac- 
 tically it may exhibit grievous diseases and blemishes, but these 
 are held to be not inherent but accidental; which only need the 
 appliance of supervisions, penalties and other curative processes 
 for their removal. Entertaining these views, they correspond- 
 ingly look upon every other social mode as wilfully wrong, as sin- 
 ful and malignant, as contrary to the laws of nature, or, as the 
 case may be, to the commands of God ; are prepared to pronounce 
 it wicked and dangerous, inimical to good government, and in 
 direct contravention of the dictates of civilization and the princi- 
 ples of Christianity. Its defects are affirmed to be intrinsic ; tlie 
 necessary outgrowths of its unsound constitution. They are 
 cankers, plague-spots, demanding the knife and the cautery, ap- 
 plied not merely to the diseased tissue, but to the body in which 
 they originate. Hence they feel it their duty to agitate, and the 
 uneasy of their species do agitate. They are prepared to make 
 great sacrifices — not of their own goods and chattels, perhaps, 
 but of the ease and peace of mind of the reprobates — in order that 
 the land may be disenthralled. They find it in the line of their 
 duty to make the naughty, uncomfortable. With agitation, heat 
 is evolved, and communicated ; and the sentimental pestilence 
 takes on a malignant form and spreads. The pulpit, which makes 
 haste to catch every prevailing malady, begins to resound. The 
 platform, with its weather-cock out for popular breezes, becomes 
 animated. The press, always on the watch for sensations and cir- 
 
28 
 
 culation, opens out in unwonted wealth of misinformation and 
 verbiage. Politicians, in no long time, find that there are votes 
 latent in the movement. Party platforms expand their liberal 
 bosoms to receive the new doctrine. Legislators become impressed 
 with its magnitude and find it expedient to respond to so distinct 
 an expression of popular sentiment ; and judiciaries, not to be de- 
 linquent in so noble a cause, tax their ingenuities to find law 
 to suit the situation. Thus it is that courts are constrained to 
 sit in judgment upon sentimentalisms. 
 
 Nevertheless, states of society are not to be judged by their own 
 sentimental law, which is always in their favor; nor that of 
 others, which is uniformly against them. They are to be judged 
 by the actual of their phenomena. They are not to be appraised by 
 what Mr. Francis Lieber or any other abstractionist imagines to 
 be their tendencies ; but by their present facts through which 
 their tendencies are visibly and authentically expressed. There is 
 no difficulty in ascertaining what is the rule of judgment, for it 
 is self-evident. It has been many times laid down, by writers up- 
 on social science, from the time of Grotius and Adam Smith to 
 that of Herbert Spencer. That state of society is right in which 
 the social particles are in harmony. The fact of concordant ex- 
 istence is proof absolute of the right to exist. It is evidence that 
 the condition is the expression of the character of the factors ; 
 and neither legislature nor judiciary is authorized to infer — what 
 none can safely predict — tliat the factors would be better dis- 
 posed if the condition were reconstructed. 
 
 If the patriarchs of the Mormon community had set them- 
 selves deliberately to plan and construct a scheme of social and 
 domestic order, wherein the most flagrant and harmful of the 
 evils and plagues which infest society elsewhere should fail to 
 obtain an entrance, they could not have acted with more wisdom 
 than that by which their work was characterized. Foremost 
 among these evils and plagues are conjugal infidelity and prosti- 
 tution. Both are characteristic of and inseparable from a state of 
 society founded upon singular marriages. They have been ever 
 present with such states of society, and, both alike, have effectu- 
 ally resisted every effort for their removal or mitigation. The 
 former is the parent of innumerable crimes and perfidies, and is 
 the occasion of more acute unhappiness and deadly enmity than 
 :ill other causes combined ; the latter, the scatterer of the seeds of 
 disease, decrepitude and death ; the corrupter of the blood of na- 
 tions; the sapper that undermines the collective constitution: 
 
29 
 
 sending taints and rottenness down from progenitor to posterity 
 — to reappear in scrofulous, tuberculous and cancerous com- 
 plaints : in weaknesses, prematurities, effeminacies and inefficien- 
 cies. Conjugal infidelity holds society perpetually upon the verge 
 of anarchy. Compelled to purchase order at the expense of hypoc- 
 risy, society dares not turn its reluctant senses upon the pool of 
 corruption, only too palpable, in which it wades ; and the clam- 
 ors of an accusing conscience, or the protests of honest censure 
 are met by pretenses of disgust, or promises of reform, or profes- 
 sions of piety, or complaints that the law does not execute its 
 mission and restrain or punish the offenders. 
 
 In Mormon don effectual obstacles have been created to put an 
 end to these plagues, and that by the simplest means : the provid- 
 ing of every marriageable woman with a husband and a home. 
 There may be less of poetry in this arrangement, but there is 
 more of safety; less of factitious sentiment, but more of intrin- 
 sic sincerity. In the Territory, conjugal fidelity is the rule; in 
 the States — at least with one of the sexes — it is the exception. 
 In the former, prostitution is not prohibited, but forestalled and 
 prevented ; in the latter, in the face of the menaces of law and 
 the vigilance of administration, it survives undiminished ; borne 
 as a lesser evil than tlie disorder which, if the thing were possible, 
 would attend upon its suppression. The majority of masculine 
 mankind — the robust, the active and the enterprising are plural- 
 ists in fact. The difference between the men of the Territory 
 and the men of the States, is in the hypocrisy of the latter which 
 professes sentiments it does not feel, and pretends a continence 
 which it neglects to practice. 
 
 Between singularism and pluralism, the question resolves itself 
 into an inquiry : Which is the more wholesome, the legitimate and 
 orderly or the illegitimate and disorderly ? The very statute to 
 prohibit and punish that which is dishonestly called "bigamy" 
 in the Territories, was passed by men a majority of whom were 
 living in concubinage. There are more practical pluralists in 
 Washington, in proportion to the inhabitancy, than there are in 
 Mormondom. The ratio of men in Congress who have supple- 
 mentary wives in everything but name, honor and subsistence, is 
 higher than that of the men who have such wives whom they 
 love, honor and provide for in the tabernacle at Salt Lake City 
 The Mormon limits his wives by his means ; taking the future as 
 well as the present into account; the statesman is subject to no 
 
30 
 
 such restriction ; for the pubhc supports his concubines, and the 
 relation is contingent upon the maintenance of his position. 
 
 Which is the more wholesome arrangement — the better state of 
 society— the most in unison with the dignity of manhood and the 
 purity of womanhood ? Which is more significant of paternal loy- 
 alty and maternal truth, things of importance to the next genera- 
 tion? One is symbolical of human honor, faith and symplicity ; 
 the other of human meanness, selfishness and double-dealing. 
 Which is which ? Where is the rule by which, wlien these scenes 
 and events stand, awaiting the final verdict, before the tribunal 
 of the future, they are to be judged ? Is it recorded in the act of 
 Congress of 1862 ? Is it embalmed in the opinion of the Supreme 
 Court of 1879 ? Assuredly in neither. 
 
 It is not proposed, in this inquiry, to examine the points under 
 the law of evidence raised in the court below by the counsel for 
 the defendant, nor to review the opinion of the court above, by 
 which those of the former were sustained. The almost painful 
 elaboration, by the latter, upon these— in striking contrast with its 
 summary disposition of the principles involved in the main issue 
 — would inspire a hope that the work was faithfully performed, 
 in the face of the fiict that the decisions were uniformly in favor 
 of the prosecution. There is a point however under the laws, in 
 respect to the qualifications of jurors, which invites examination ; 
 before proceeding to which, in oi-der that the analysis may be in- 
 telligible, a survey of the situation is requisite. 
 
 Polygamy and bigamy are acts the knowledge of which has 
 been present to the law as long, to say the least, as the English 
 language has existed ; the one as a custom, the other as a crime. 
 Bigamy has been known, from the earliest periotl of English jur- 
 isprudence, as " a common law offense," polygamy was declared 
 to be a crime by statute in the reign of that theological potentate 
 James the First. In the United States, the characteristic distinc- 
 tion between the two acts has always been preserved. K"o lawyer 
 at the bar, nor judge upon the bench, would have confounded the 
 one with the other, any more than he would have overlooked the 
 unlikeness between a purchase in oj^en market and a robbery upon 
 the highway. 
 
 The act of Congress of 1862 describes a polygamous marriage 
 and calls it " bigamy," thereby creating a factious offense — a new- 
 fitshioned bigamy. Under the laws against the old-fashioned big- 
 amy, only the party guilty of a fraud practised upon the other was 
 
3i 
 
 punished; under the act which generates the new, both parties 
 are punished, as if guilty of a trespass each upon the other. In 
 pursuance of this act, in October, 1876, George Reynolds was in- 
 dicted, in the District Court of the United States for the Territory 
 of Utah, for the crime of bigamy; he, the said defendant, having 
 married one Amelia Jane Schofield, being then already married to 
 one Mary Ann Tuddenham. The act was passed in 1862 pre- 
 vious to the marriage. 
 
 Before the passage of the act to marry one wife having another, 
 was not illegal ; and such as had so married were, and continue 
 to be, in contemplation of the laws of the United States, good and 
 lawful citizens. As no person can^ by the same transaction, be- 
 come both a bigamist and a polygamist, it follows that such had 
 completed their marital adventures before the passage of the act, 
 remained polygamists, while such as, after the passage of the act, 
 entered into plurality engagements thereby became, in the eye of 
 law, bigamists. In short, the act of 1862 established a broad dis- 
 tinction between bigamy and polygamy — between loyal and the 
 criminal pluralists. 
 
 In the administration of injustice, equivocations are convenient; 
 but the presence of the equivocation testifies to a contemplated 
 injustice. The defendant was indicted for bigamy ; but, as ap- 
 pears throughout from the proceedings, arraigned and tried for 
 polygamy. Thus, on the trial of a person charged with a specific 
 offense— with having, on a certain day, perpetnited an act of big- 
 amy, a juror is put upon oath for an inquiry into his competency, 
 and questioned in respect to his domestic relations. He is asked, 
 " Do you live in polygamy? " — and it appearing to the satisfaction 
 of the court that he does live in polygamy, he is found unfit, and 
 excluded from the panel. 
 
 Jurors are tried by two processes : upon their voir dire, as it is 
 called, and upon evidence alitmde, of third persons ; but not by 
 both ; counsel, electing one, not being permitted to resort to the 
 other. It is a rule of the law, that no person called as a juror 
 shall be asked questions, the answers to which might tend to his 
 general depreciation. No witness, in a court of justice, is com- 
 pelled, out of his own mouth, to criminate, no juror to diminish 
 himself; and yet, for no other purpose than that of disparagement 
 and disqualification, this inquiry was allowed. 
 
 Here was a manifest violation of an established rule of judicial 
 obligation. It did not follow, even if the disfranchised jurors — 
 
33 
 
 of which there were several — lived in polygamy, that .they were 
 obnoxious to the provisions of the act of 1862, under which the 
 defendant was indicted ; nor that they were inimical to the law, 
 or opposed to its execution. If there had been authority to begin 
 the inquiry, justice would demand that it should be prosecuted 
 until tlie exact status oi the party had been ascertained ; but 
 there was no such authority. This was equally the right of the 
 juror and of the defendant ; but it is manifest, that, in contem- 
 plation of the court below, and of the court above— by which the 
 decrees of the court below were approved— neither juror nor de- 
 fendant had any rights which they felt themselves bound to re- 
 spect. The court was appointed to be a terror to every evil-doer 
 of the plurality species, whatever the grade or variety ; and the 
 uniformity with which it decided every provisional question 
 raised by the prosecution in its favor, and every one raised by 
 the defense against it, is evidence that, in the discharge of its 
 mission, its heart knew no fear, its hand no hesitation. 
 
 Under the mechanical practice of the law, which makes the bar- 
 rister a tradesman, and the text-writer an epitomist — neither of 
 them having any conception of the philosophy that underlies their 
 forms and precedents— it ceases to be known that the source of 
 such forms and precedents was other than arbitrary. Men write 
 and argue, for example, for and against the trial by jury.; neither 
 party comprehending how nor why it grew into existence, nor in 
 what pressing human want it originated. It is forgotten, or re- 
 garded as of no significance, that the fundamental law of the trial 
 by jury is, that men shall be judged by " their peers of the vicin- 
 age " — their equals, likes, neighbors ; persons of a common meas- 
 ure with themselves; representatives of the feelings, sentiments, 
 prejudices and beliefs of the social order to which they belong. 
 
 The trial by jury has no archaic history. It had no arbitrary 
 or conventional beginning. It was a custom, doubtless, ages be- 
 fore it was a law. It grew into existence in response to a need 
 that was felt, rather than to a conclusion that was formulated ; 
 was the product of intuition rather than of reflection. It was a 
 thing in favor of justice, and to adapt its distribution to the cir- 
 cumstances and conditions of those among whom it was admin- 
 istered. The jury was the organ chosen by society to speak its 
 voice. Its purpose was to mitigate the inflexibility of the written 
 law, by the antagonism of fellow feeling and common sympathy. 
 Its implied rule of conduct was, ^' we punish no man for being 
 
33 
 
 no better than ourselves." With it, the question was not whether 
 the accused had committed the act charged, but whether he was 
 guilty ; whether the deed was of such a nature that the common 
 conscience demanded its punishment. The jurors are "judges 
 of the law and of the fact ;" that is to say, they are judges wheth- 
 er the character of the fact is such as to make expedient the appli- 
 cation of the law. 
 
 According to this principle, in the trial of the case under con- 
 sideration, Mormons were in no wise unfit for the position of ju- 
 rors. On the other liand, they had every requisite legal and moral 
 qualification. They were peers and of the vicinage, capable to 
 speak the view of the community to which all alike belonged. 
 Who better than they could judge what was suitable to its '* peace 
 and dignity ?'' By every consideration of right and justice their 
 exclusion from the panel was an act of wanton and illegal oppres- 
 sion. According to the terms of the indictment, it was not the 
 Territory of Utah, nor the Mormon body, nor the principles of 
 Mormonism nor polygamy that was on trial ; it was a single indi- 
 vidual. If he was a criminal, and there were any interested in 
 his punishment, it was the indiscriminate inhabitancy of his own 
 neighborhood. If there were any who were able to judge wheth- 
 er, according to the common standard, he was too much of a rep- 
 robate to be allowed to go unrestrained, it was they who best knew 
 his disposition. 
 
 But it was, in fact, Mormonism and its domestic relations that 
 were on trial ; and when the Act of 1862 was passed, the judg- 
 ments against them was foreordained. The equivocation em- 
 bodied in the statute has borne throughout its appropriate fruits, 
 in sophistications of the law, in violation of the rules of juris- 
 prudence, in the abandonment of fixed maxims and precedents, 
 in the privation of the defendant of legitimate means of defense, 
 and in the arbitrary and tyrannical disparagement of the whole of 
 a numerous and loyal population. The court has done its work 
 — all the courts have performed their respective parts in the pro- 
 gramme, accordingly as the same were appointed; but they have 
 not done justice. They have won a round of applause of a num- 
 ber of fanatical men and silly women, whose fanaticism and silli- 
 ness, so far as lies in their power, they have made the law of the 
 land. But they have done that against which every spark of true 
 manhood will protest ; a deed disgraceful to themselves, to civili- 
 zation and to humanity.