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 Admission of Utah 
 
 Limitation of 
 
 State Sovereignty by Compact with 
 
 THE United States. 
 
 An Opinion 
 
 GIVEN BY 
 
 GEORGK TICKNOR CURTIS 
 
Digitized by the Internet Arciirve 
 
 in 2007 witin funding from 
 
 IVIicrosoft Corporation 
 
 http://www.arcliive.org/details/admissionofutalilOOcurtricli 
 
Admission of Utah. 
 
 Limitation of 
 
 State Sovereignty by Compact with 
 
 THE United States. 
 
 An Opinion 
 
 GIVEN BY 
 
 GEORGE TICKNOR CURTIS 
 
 New York: 
 printed for the author 
 by hart & von arx. 
 
 1887. 
 
'^O 
 
Bancrorr f.fbrarv 
 
 ^3 77 
 
 OPINION. 
 
 I have been requested to give my opinion on the Constitutional 
 vaHdity of certain clauses in the proposed State Constitution for Utah 
 relating to polygamy and bigamy. 
 
 These clauses are the follovk'ing : 
 
 Art. XV.— Sec. 12. Bigamy and polygamy being considered incompatible 
 
 ■with "a republican form of government," each of Ihem is hereby forbidden and 
 
 declared a misdemeanor. 
 
 ff Any person who shall violate this section shall, on conviction thereof, be pun- 
 
 C 'ished by a fine of not more than $1,000 and imprisonment for a term not less tharp 
 
 2isix months nor more than three years, in the discretion of the Court. This section? 
 
 shall be construed as operative without the aid of legislation and the offences pro- 
 
 ^hibited by this section shall not be barred by any statute of limitation within three 
 
 ™years after the commission of the offence; nor shall the power of pardon extendi 
 
 ^thereto until such pardon shall be approved by the President ot the United States. 
 
 C^ It will thus be seen that this provision requires for its operation no- 
 legislation whatever, but that indictments can be found under it 
 and punishments inflicted, and the pardoning power in respect to the- 
 offence is limited by a check in the hands of the President of the 
 United States. 
 
 This Constitution contains an article prescribing the manner m\ 
 
 which amendments must be framed and adopted. But the power of 
 
 amendment is limited by the following proviso, expressly drawn an<M 
 
 devised so as to prevent any amendment or change in the anti-polygai- 
 
 my section without the assent of Congress : 
 
 Provided^ That Section 12 of Article XV. shall not be amended, revised, or nv 
 any way changed until any amendment, revision or change, as proposed therein 
 shall, m addition to the requirements of the provisions of this article, be reported to 
 the Congress of the United States and shall be by Congress approved and ratified^ 
 and such approval and ratification l)e proclaimed by the President of the United 
 States, and if not so ratified and proclaimed, said section shall remain perpetual. 
 
 My opinion has been requested upon the question whether the pro- 
 posed check on the pardoning power, which this Constitution would 
 vest in the hands of the President of the United States in the case of 
 an offence prohibited by a State Constitution, and the proposed lim- 
 itation on the power of amending the Constitution in regard to ther 
 polygamy and bigamy denounced by Section 12 of Article XV. , are- 
 consistent with or repugnant to our system of government. This- 
 question of the limitation of a State sovereignty by a compact betweeru 
 the State and the United States is, in the precise aspect in which it here 
 
arises, a new one ; but it is not a new question in principle, and there 
 are precedents which will not only afford important aid in its solution, 
 but which are conclusive. 
 
 As preliminary to the discussion of this question it will be useful 
 to say something respecting the nature of the political system formed 
 by the Union of the States under the Federal Constitution. The 
 framers of that Constitution made a great discovery in the science of 
 government, to which they were led by the consideration that the 
 States were independent political communities, although then united by 
 the Articles of Confederation for certain purposes common to them all. 
 
 The grand effort of the Federal Convention of 1787, which framed 
 the Constitution of the United States, was to make a system of gov- 
 ernment for the Union, which, while having certain specific powers 
 ceded to it by the people of each State, would still be consistent with 
 the preservation of the State sovereignties in all other respects. The 
 discovery that was made in the process of forming the Federal Con- 
 stitution was that sovereignty, which, in our American sense, means 
 only the political authority of the people, is divisible according to 
 ithe subjects on which it acts ; that some powers of government can be 
 vested in one class of public agents, and all others can be retained by 
 the people in whom they primarily reside ; and thus that the individual 
 inhabitants of separate political communities can be acted on by two 
 ^distinct governments, each of which has its appropriate sphere. But this 
 anode of constituting a mixed political system required that the Fed- 
 eral, or central government, should, by express provision, be made su- 
 ipreme and paramount in the exercise of all the powers ceded to it by 
 the peopte of the several States. That the people of the several States 
 would retain all the original and inherent powers not parted with by 
 cession to the Federal Government was assumed to be a fundamental 
 amplication, resulting from the fact that the powers granted to the 
 Federal Government were specific, described, limited and enumerated, 
 and did not comprehend all the powers of sovereignty. But when the 
 Constitution, as originally framed and promulgated, came before the 
 people of the several States for adoption and ratification, they were not 
 content to leave this very important matter to implication; they de- 
 manded an express reservation of all the powers which were not to be 
 ceded by the people of the several States to the Federal Government, 
 or which they were not to be prohibited from exercising. Accordingly 
 the Tenth Amendment, adopted in 1789-91, was made to declare : 
 
 "The powers not delegated to the United Slates by the Constitution, nor pro- 
 hibited by it to the States, are reserved to the States respectively, or to the people." 
 
By this reservation, every State remains a self-governing political 
 community, in respect to its own inhabitants, in every relation in which 
 those inhabitants are not by the Constitution of the United States 
 placed under the authority of the Federal Government. 
 
 It is this mass of rights, privileges and powers not vested in the Fed- 
 eral Government, but retained by the people of each State, that consti- 
 tutes the State sovereignty. It follows as a necessary consequence 
 from this system, that the people of every State in this Union have under 
 their entire control every relation of their inhabitants that is not under 
 the control of the United States, by reason of some provision in the 
 Federal Constitution. With the domestic relations of their inhabi- 
 tants the States can deal as they see fit. 
 
 There is another marked and prominent characteristic of our 
 political system evinced by the provisions of the Federal Constitution.- 
 It is that each State, by and through that Constitution, enters into- 
 compacts and agreements with all the others. They are pro- 
 hibited from making agreements with each other without the 
 con.sent of Congress ; but they may and do covenant perpetually 
 and irrevocably, by and through the Constitution of the United' 
 States, that the Federal Government shall have, and exercise all 
 the powers ceded to it by their assent to the Constitution, and that 
 no State shall exercise any power prohibited to it by that instru- 
 ment. The idea, therefore, of compacts, covenants and agreements 
 between the separate States, as members of the Union, and the 
 United States as the representative of all the States collectively, is im- 
 bedded in the Federal Constitution, and forms its principal strength. 
 It is what gave the Federal Government authority to vindicate and 
 assert its own existence and powers against an attempt of certain 
 States to break the compacts which they had respectively made with 
 the United States when they ratified and adopted the Constitution. 
 
 The loth section of Article I. of the Constitution contains the pro- 
 hibitions which it has laid upon the'States. Some of these prohibitions 
 are absolute ; others relate to things that can be done only by the 
 consent of Congress. Fvery one of them, both those that are 
 absolute and those that are conditional, relate to things that every 
 State would have a perfect right to do if it had not covenanted 
 with the United States, in and by the Constitution, that it will 
 not do them. But the prohibitions owe all their force,- all their 
 obligation, all their restraining efficacy, to the compact which 
 every State has made with all the others, collectively styled the 
 United States, whereby each State has limited its own sovereignty '\r% 
 
6 
 
 «oertain respects over which it would otherwise have retained full 
 ccmtrol. 
 
 It follows from this statement, as a legitimate deduction, that such a 
 coyenaiH, entered into between the several States and the United 
 States, clothes the Federal Government with authority to enforce the 
 prohibitions when a State undertakes to break the compact into which 
 it has entered. Take, for example, one of the absolute prohibitions : 
 -''No State shall enter into any Treaty, Alliance or Confederation.'* 
 If any State were to do what is thus prohibited, is it to be supposed 
 that there would be no remedy } that the United States would have no 
 constitutional power to prevent the operation of the treaty, alliance or 
 confederation .' Take one of the conditional prohibitions : '* No 
 State shall, without the consent of Congress, lay any duty of tonnage, 
 keep troops or ships of war in time of peace." It is not to be im- 
 agined that if a State were to undertake to do one of these things the 
 United Slates would be powerless in the matter. And if it is asked 
 -what the remedy would be, I answer that it would not be by Federal 
 action against the State itself in its corporate, political or sovereign 
 capacity ; it would be by appropriate legislation to reach, restrain or 
 ipunish individuals who should undertake to carry out the will of their 
 State in respect to a thing that it had covenanted that it would not do 
 •or attempt to do. This authority, which results necessarily from the 
 I'ight of the United States to execute every part of the Constitution, 
 Tests for its foundation on the compact that every State has made with 
 the United States that it will not exercise its own sovereignty in cer- 
 tain matters, but that in those matters it has submitted its own sover- 
 eignty to the control of Congress. 
 
 Commencing, then, with the frame-work of the Constitution alone, 
 vwe find that it is largely and primarily founded in irrevocable com- 
 ipacts between each State and the United States, whereby every State 
 Bias diminished its own sovereignty in certain important particulars. 
 Other examples of the diminution or limitation of the State sover- 
 «eignties will be found in the amendments adopted after the close of the 
 Civil War, some of which largely curtailed the previous State powers. 
 These curtailments and diminutions of State sovereignity rest on 
 compacts made by the several States with the United States. 
 
 What, then, is to prevent a new State, or the people of a proposed new 
 State, when they present themselves for admission into the Union under 
 a Republican Constitution, from doing that which every State did when 
 it ratified and accepted the Constitution of the United States, whether 
 it was one of the original thirteen States, or was one that came into ex- 
 
istence as a State since the year 1789? Is it said that the renuncia- 
 tions of State sovereignty which were made by the States when they 
 entered the Union under the Constitution were made by all alike, and 
 related to matters of common concern, whereas a matter that is pecu- 
 liar to the social condition or situation of a proposed new State is not 
 of that character ? This would be a begging of the question ; for the ques- 
 tion here is what compacts in diminution or limitation of its own sov- 
 ereignty is it constitutionally competent for any State tu make with the 
 United States ? Must it be one that every other State has made or 
 ought to make, or wishes to make? Or, if it is one that is peculiar to 
 the situation of the proposed new State, growing out of the present or 
 past social condition of that people, is it excluded from the category 
 of agreements and covenants that a State can make with the United 
 States ? The precedents that will be cited in the course of this opinion 
 answer this question emphatically in the negative. 
 
 Although it has sometimes, and generally, been the legislative prac- 
 tice of Congress, when admitting new States into the Union, to declare 
 that they are admitted on an equal footing with the original States in all 
 respects whatsoever, yet the Constitution does not require this declara- 
 tion. It simply provides that "New States may be admitted by the 
 Congress into the Union." The equality is an incident of the admis- 
 ■sion ; which imports of itself that the State, after it has become a 
 member of the Union, is to enjoy all the rights and privileges of 
 such membership. But this in noway affects the conditions on which 
 Congress may see fit to grant the admission. It is not necessary that 
 those conditions should be such, and such only, as have been made 
 with every other State that has been admitted under the power given 
 in Section 3 of Article IV. Equality of membership in the Union 
 means that every State shall enjoy the same rights and privileges 
 ^s every other State. One of the rights of every member of the 
 Union is a right to make covenants and agreements with the United 
 States in any form in which the parties can unite. If, when it enters 
 the Union, a new State makes a covenant with the United States in 
 diminution or limitation of its sovereignty, in a way in which other 
 States have not limited or diminished theirs, the new State is not 
 placed in the Union on an inequality with the other States. There is 
 no inequality in respect to any light, privilege or standing as a mem- 
 ber of the Union. To use the present case as an illustration : 
 
 The people of Utah propose to covenant with the United States, in 
 their State Constitution, that the State Executive shall not grant a 
 pardon to a person convicted of polygamy or bigamy, without the con- 
 
8 
 
 currence of the President of the United States; and that they,'the people 
 of the State of Utah, will never amend or change that part of the Constitu- 
 tion which [makes and punishes the offences of polygamy and bigamy, 
 without the consent of Congress. Why have they offered to make this- 
 compact? Because there is a peculiarity in their past social condition 
 which requires that, in order to remove a possible objection to their ad- 
 mission into the Union as a State, they shall make this compact ini 
 diminution of what would otherwise be their unlimited sovereign right 
 to change their Constitution in this respect at their own pleasure. 
 It has nothing to do with the Constitutional validity of this compact 
 that other States have not made it, or have not been in the same situa- 
 tion, or have not had the same motive. This will abundantly appear 
 from the precedents which are to be cited. 
 
 I have always regarded Section 3 of Article IV. of the Constitu- 
 tion of the United States, as the source and the only 
 source of the power of Congress, not only to admit new 
 States, but to create and govern those peculiar dependen- 
 cies which have come to be denominated " Territories," but which, 
 should be kept in that condition no longer than is necessary to allow of 
 their development into communities fit for the rights and privileges of 
 Statehood. It is thirty years since I had occasion to study this part of 
 the Constitution and the legislation under it with peculiar care ; and 
 although the result in the case of Dred Scott, in the argument of which. 
 I took part in the Supreme Court of the United States, in 1856-7, was- 
 not what I hoped for and endeavored to bring about, I venture to 
 •ay that the doctrine for which I then contended and which was ac- 
 cepted by Justices McLean and Curtis, is now almost universally con- 
 ceded by Constitutional lawyers in all parts of the Union. The doc- 
 trine was this: That Section 3 of Article IV. of the Constitution, 
 primarily designed to provide a legislative authority and process for 
 bringing new States into the Union, clothed the Congress of the United 
 States with a plenary legislative power to dispose of the public property 
 denominated "the territory" of the United States, as well as all other 
 property of the United States, and with a plenary legislative power to 
 form the settlers on the public domain into political communities and 
 to govern those communities so long as they should remain in a state 
 of pupilage or preparation for admission into the Union as States.* 
 
 *♦' The Constitutional Power of Congress over the Territories. " An argument 
 delivered in the Supreme Court oi the United States, December 18, 1856, in the 
 case of Dred Scott, plaintiff in error, v. John F. A, Sandford, by George Ticknor 
 Curtis : Boston, Little, Brown & Company, 1857. 
 
9 
 
 But as the formation and admission of new States was the primary de- 
 sign of the section, it follows that Congress is placed under the obliga- 
 tion of a public TRUST to permit such communities to become Slates, 
 and to bring them into the Union as States when the people desire it, 
 and they have sufficient population and resources to sustain a State 
 government, republican in its form and spirit. It is not a proper dis- 
 charge of this public trust to keep any Territory indefinitely in the 
 condition of a Territory, thereby keeping open a field for the continued 
 exercise of Federal patronage and power. Territorial government is. 
 not self-government ; and although ii is necessary for a certain period 
 for Congress to govern the settlers on the public domain — a period 
 that may vary in different cases — yet where the Territorial community 
 has become so large and so prosperous that its people are entirely 
 capable of governing themselves, it is contrary to the spirit of our insti- 
 tions and in my opinion to the intent of the Constitution, to withhold 
 from them the full panoply, rights and privileges of Statehood, and to 
 keep them in subjection to a distant power over which they have 
 not even a partial control, as the citizens of every State in the Union 
 have. 
 
 But so long as it is necessary for the Territorial condition to con- 
 tinue, so long Congress properly discharges the public trust imposed 
 upon it by the Constitution, when it determines what shall be the so- 
 cial relations within the particular Territory, while it remains a terri- 
 tory. This is just as much within the province of Congress as it is to 
 create the machinery of a Territorial government, and accordingly it 
 was, and rightfully, the practice of Congress, in organizing a particular 
 Territory, to prescribe whether the condition of slavery, or involuntary 
 servitude, for example, should or should not be allowed therein. This 
 continued to be the practice down to the time when the existence of 
 slavery in Territories took on another form of public controversy ; and 
 undoubtedly the power of Congress, as the precedents presently to be 
 cited will show, was exercised both for and against slavery, according 
 to varying circumstances ; and the authority of Congress to act either 
 way could only be referred to Section 3 of Article IV. of the Consti- 
 tution. It is to the same source that the power to enact the laws- 
 against polygamy in the Territories, which began to be enacted in 1862, 
 and were re-enacted in 1882, must be referred. 
 
 But this matter of polygamy in Utah, where it has existed for forty 
 years, and for a large part of which period it was practised without any 
 interference on the part of the Federal Government, and under circum- 
 stances evincing at least great public indiff'erence concerning it, has. 
 
10 
 
 now assumed an entirely new aspect. Of the voters of Utah who are 
 Mormons in religious faith — a class of religionists whose religious belief 
 is supposed to sanction polygamy — about 95 per cent, cast their votes 
 at a recent election in favor of the Constitution, the provisions of which 
 on the subject of polygamy are quoted at the head of this opinion. 
 But few of the so-called "Gentiles" voted on this Constitution. Of 
 the negative votes cast against the Constitution, 504 in number, only 
 about one-half were cast by Mormons. If the Constitution is accepted 
 by Congress as it is presented, and becomes the fundamental law of 
 the new State of Utah, the Mormon population, which is very largely 
 the majority, will be the governing people of the State. They have 
 bound themselves to support and abide by a constitution which will 
 limit their State sovereignty in the matter of polygamy by a public 
 compact with the people of the United States. The question whether 
 this will be a valid, efficient and Constitutional compact, must be 
 largely determined by the precedents which have been made when 
 other new States have been admitted into the Union under certain 
 conditions. 
 
 It is obviously immaterial, when a new State is admitted into the 
 Union, whether the proposal of a peculiar condition or special com- 
 pact on a particular subject, is first suggested by Congress, or is 
 brought forward by the people who ask for admission under a Constitu- 
 tion which they present. In either case, if the Constitution, after it has 
 received the sanction of Congress, contains a certain limitation of the 
 State sovereignt}', a compact has been made between the State and the 
 United States, and the preliminary question is, whether it will be a 
 valid, efficient and Constitutional compact or condition of admission 
 into the Union, by whomsoever proposed. On this question the pre- 
 cedents will throw a flood of light. 
 
 The precedents to which I shall refer divide themselves into two 
 classes. The first class comprehends cases which illustrate in a 
 very striking manner the mode in which Congress at an early period 
 dealt with slavery in particular Territories of the United States. These 
 early cases are three in number : the first being that of Tehnessee ; the 
 second is Mississippi ; and the third is the Territory of Orleans. 
 
 On the 2d of April, 1790, Congress accepted a cession of the claim 
 of North Carolina to a certain region of country west of that State 
 which afterward became the State of Tennessee. One of the condi- 
 tions of the deed of cession was ''that no Regulation made or to be 
 made by Congress shall tend to emancipate slaves. " (Statutes at Large, 
 vol. I., p. 106.) In this cession, North Carolina assumed that Con- 
 
11 
 
 ;gress had power to regulate slavery in a Territory ; and using the very 
 word "Regulation" which the Constitution employs as synonymous 
 with Law, the State of North Carolina lays the United States under a 
 restriction with respect to the Territory of Tennessee. Congress, by 
 an Act passed May 29, 1790 (Stat, at I-arge, vol. I., p. 123), organized 
 a Territorial Government upon the conditions 0/ the deed of cession. 
 Here then was a compact made between the United States and the 
 State of North Carolina, that in governing this Territory of Tennessee 
 Congress would make no law tending to emancipate slaves. The other- 
 wise unlimited sovereignty of the United States to govern Territories 
 ^as in this instance limited by a compact with the State of North 
 Carolina. This occurred in the Presidency of Washington, John 
 Adams being Vice-President, Jefferson Secretary of State, Hamilton 
 Secretary of the Treasury, and many of the framers of the Constitution 
 being in Congress. The fact that Congress limited the sovereign 
 authority oHhe U?tited States in this particular case of Tennessee, does 
 not make a difference in principle from the case of a compact limiting 
 Jhe sovereignty 0/ a State. 
 
 The next case in chronological order relates to the Territory of 
 Mississippi, which was organized by Act of Congress passed April 7, 
 1798. The 7th Section of the Act prohibited the importation of slaves 
 into the Territory from any place out of the limits of the United States, 
 leaving, by clear implication, a right to introduce them from places 
 within the United States. The 3d Section made this implication con- 
 -clusive ; for it excluded the operation of the freedom clause in the 
 Ordinance of 1787, by an exception which prevented its application to 
 Mississippi. When the bill was pending in the House of Represen- 
 tatives, Mr. Thatcher, of Massachusetts, moved to strike out this ex- 
 •ception, upon the ground that the Government of the United States 
 originated in and was founded on the rights of man, and could not 
 -consistently establish a subordinate government in which slavery was 
 to be both tolerated and sanctioned by law. A debate followed, but 
 the motion to strike out received only twelve votes. The organic 
 Act gave a clear and unequivocal sanction to slavery in the Territory of 
 Mississippi. (Annals of Congre.ss, 5th Cong., vol. 2, pp. 1306-13 12.) 
 Afterward, March 26th, 1804, came the Act to organize the Ter- 
 ritory of Orleans. It contained a prohibition against the introduction 
 of all slaves, ** except by citizens of the United States removing into 
 the Territory for actual settlement, and being at the time of such re- 
 moval bona fide owners of such slave or slaves ; and every slave import* 
 'Cd or brought into the Territory contrary to the provisions of this Act 
 
12 
 
 shall thereupon be entitled to and receive his or her freedom." This-. 
 Organic Act, therefore, regulated slavery in the Territory of Orleans in 
 both ways — by permission and by prohibition. These two cases of 
 Mississippi and Orleans are cited here, not as compacts made by the 
 United States as in the case of Tennessee, but as evidence that in 1798 
 and 1804 Congress regarded itself as holding a full legislative authority 
 over the domestic relations of the inhabitants of a Territory, and reg- 
 ulated the relation of slave-owner and slave as it saw fit. When we pass. 
 from this point of time (1804) we leave the immediate presence of the 
 framers of the Constitution and their contemporary generation, and 
 come to the first precedent of the second class that will be here cited ; 
 namely, the cases in which the people of a Territory have been ad- 
 mitted into the Union as a State, upon some condition in the nature 
 of a compact between the new State and the United States. This first 
 precedent of the second class is that of Indiana. 
 
 Indiana was formed out of a part of the North Western Territory 
 which was ceded by Virginia to the United States, and it was organ- 
 ized as a Territory by Act of Congress passed May 7, 1800. It re- 
 mained a Territory until 181 5. Proceedmgs were then taken for its 
 conversion into a State ; and a State Constitution having been framed 
 by a convention of delegates (June 20, 18 16), Congress passed a joint 
 resolution admitting the State of Indiana, which was approved Decem- 
 ber II, 1816. The joint resolution recited that the Constitution which 
 had been formed by the people of the Territory 'Ms republican in 
 form, and in conformity with the principles 0/ the articles of compact 3<?- 
 iween the original States and the people and States in the Territory- 
 North West of the River Ohio, passed on the 13th of July, 1787."' This, 
 recital was followed by the resolution tn these terms : 
 
 Resolved^ Thit the State of Indiana shall be one, and is hereby declared to be 
 one, of the United States of America, and admitted into the Union on an equal 
 footing with the original States in all respects whatsoever. 
 
 If we recur to the Ordinance of 1787, we find that among other 
 fundamental compacts which it made between the original States and 
 the people and States in the North Western Territory (meaning all 
 future States that should be created therein), there was one that ex- 
 cluded slavery forever. If the Congress which sat under the Constitu- 
 tion in 18 1 6 had not required this restriction to be incorporated in, 
 the Constitution of the State of Indiana, the Ordinance of 1787 would 
 not have carried it into operation in that State by its own force. But 
 by requiring the State Constitution to be in conformity with the com- 
 pacts of the Ordinance, Congress bound the sovereignty of the people 
 
13 
 
 of Indiana by a compact between that State and the United States. Yet 
 this was not thought to produce .any inequaHty. between the State of 
 Indiana, as a member of the Union, and all the other States. It was 
 imposed as a condition of admission into the Union which the people 
 of Indiana were willing to accept and offered to accept. 
 
 The next precedent that I shall cite, although four years earlier than 
 that of Indiana, is strikingly in point on the present question. I have 
 stated when the Territory of Orleans was organized. The people of 
 that Territory in 1812 framed a Constitution for a State which they 
 called Louisiana. It was part of the Territory ceded by France to the 
 United States in 1803. The inhabitants were almost wholly of French 
 <iescent ; they spoke the French language, and their public proceedings 
 had always been conducted and recorded in that language, and not 
 in English. This peculiarity of their social condition continued down 
 to the time when they applied for admission as a State. Congress im- 
 posed various conditions on their admission ; one of which was that 
 their Constitution should provide for keeping the public records of 
 judicial and legislative proceedings in the English language. It was a 
 matter of interest to the people of the United States to have the official 
 language of the State of Louisiana the same that it was in all the other 
 States, although the popular speech was the French tongue, and most 
 of the inhabitants knew no other. But for this restriction, the people 
 of the State of Louisiana could, by their sovereign right of self govern- 
 ment, have recorded their proceedings in what was their vernacular 
 tongue. But because they were required to make, and did make, this 
 limitation upon their State sovereignty, by compact with the United 
 States, it has never been supposed that the State of Louisiana has ever 
 since been in the Union on an inequality with the other States. It is a 
 matter of interest to the people of the United States that monogamy 
 shall be the marriage relation in Utah, as it is throughout all the 
 States. If the people of the proposed State of Utah covenant in their 
 Constitution that polygamy and bigamy shall be a misdemeanor 
 against the State, and that they never will change their Constitution in 
 this respect without the consent of Congress, what inequality would 
 this limitation of their State sovereignty introduce between the State of 
 Utah and the other States ? The other States have no such practice as 
 polygamy recognized in their social condition, and no reason and no 
 motive for making or offering to make with the United States any 
 compact on the subject of marriage. 
 
 The next precedent to be cited is the memorable case of Missouri, 
 •the admission of which convulsed the Union for a time, until, under 
 
14 
 
 the lead of Mr. Clay, Congress, in 182 1, settled a condition on which 
 it was to be admitted into the Union ; a condition which formed 
 a compact between the Stale of Missouri and the United States, and 
 one that unquestionably limited a certain provision of the State Con- 
 stitution, and curtailed one of the State power?. 
 
 The Constitution presented by the people of Missouri, framed in 
 1820, contained the following provisions : 
 
 Sec. 26. The General Assembly shall not have power to pass laws — 
 K For the emancipation of slaves without the consent of the owners ; or with, 
 out paying them, before such emancipation, a full equivalent for such slaves sa 
 emancipated, and, 
 
 2. To prevent bona-fide immigrants to this State, or actual settlers therein^ 
 from bringing from any of the United Stales, or from any of their Territories, such, 
 persons as may be deemed to be slaves, so long as any persons of the same descrip- 
 tion are allowed to be held as slaves by the laws of this State. 
 They shall have power to pass laws — 
 
 1. To prohibit the introduction into this State of any slave who may have com-. 
 mitted any nigh crime in any other State or Territory. 
 
 2. To prohibit the introduction of any slave for the purpose of speculation, or 
 as an article of trade or merchandise, 
 
 3. To prohibit the introduction of any slave, or the offspring of any slave, wha 
 heretofore may have been, or hereafter may be, imported from any foreign coun- 
 try into the United States, or any Territory thereof, in contravention of any exist- 
 ing statute of the United Stales. 
 
 4. To permit the owners of slaves to emancipate them, saving the right of 
 creditors^ where the persons so emancipating will give security that the slave so 
 emancipated shall not become a pub lie charge. 
 
 It shall be their duty, as soon as may be, to pass such laws as may be neces- 
 sary — 
 
 1. To prevent free negroes and mulattoes from coming to and settling in this. 
 State, under any pretext whatever, and 
 
 2. To oblige the owners of slaves to treat them with humanity, and to abstairv 
 from all injuries to them extending to life or limb. 
 
 (Missouri Constitution of 1820.) 
 
 The controversy in regard to the admission of Missouri was finally- 
 narrowed down to the 4th clause of that part of the proposed Consti- 
 tution which defined the laws that the General Assembly should be per- 
 mitted to pass in regard to slavery ; namely, the clause above printed 
 in italics. On the 26ih of February, 1821, Mr. Clay, from a joint 
 committee, reported in the House of Representatives a joint ''Resolu- 
 tion providing for the admission of Missouri into the Union, on a 
 certain condition" which resolution was passed and approved March 2, 
 1 82 1. The condition appears in the following proclamation of Presi- 
 dent Monroe, announcing the admission of Missouri into the Union; 
 A PROCLAMATION 
 By the President of the United States. 
 
 Whereas, The Congress of the United States, by a joint resolution of the^: 
 second day of March last, entitled "Resolution providing for the admission of the- 
 State of Missouri into the Union on a certain condition," did determine and de- 
 clare " That Missouri should be admitted into this Union on aia equal footing with 
 the original States, in all respects whatever, upon the fundamental condition, that 
 
16 
 
 the fourth clause of the twenty-sixth section of the third article of the Constitution 
 submitted on the part of said State to Congress, shall never be construed to author- 
 ize the passage of any law, and that no law shall be passed in conformity thereto, 
 by which any citizen of either of the States of this Union shall be excluded from 
 the enjoyment of any of the privileges and immunities to which such citizen is 
 entitled under the Constitution of the United States. Provided^ That the Legisla- 
 ture of the said State, by a solemn public act, shall declare the assent of the said 
 State to the said fundamental condition, and shall transmit to the President of the 
 United States, on or before the first Monday in November next, an authentic copy 
 of said act ; upon the receipt whereof, the President, by proclamation, shall an- 
 nounce the fact : whereupon, and without further proceedings on the part ot 
 Congress, the admission of the said State into this Union shall be considered as 
 complete." And, whereas, by a solemn public act of the Assembly of the said 
 State of Missouri, passed on the twenty-sixth day of June, in the present year, en- 
 titled, "A solemn public act declaring the assent ot this State to the fundamental 
 condition contained in a resolution passed by the Congress of the United States, 
 providing for the admission of the State of Missouri into the Union on a certain 
 condition," an authentic copy whereof has been communicated to me, it is solemnly 
 and publicly enacted and declared, that that State has assented, and does assent^ 
 that the fourth clause of the twenty-sixth section of the third article of the Consti- 
 tution of said Slate ** shall never be construed to authorize any law, and that no 
 law shall be passed in conformity thereto, by which any citizen of either of the 
 United States shall be excluded from the enjoyment of the privileges and immuni- 
 ties to which such citizens are entitled under the Constitution of the United 
 States." Now, therefore, I, James Monroe, President of the United States, in 
 pursuance of the resolution of Congress aforesaid, have issued this, my Proclama- 
 tion, announcing the fact, that the said Stale of Missouri has assented to the funda- 
 mental condition required by the resolution of Congress aforesaid ; whereupon the 
 admission of the said State of Missouri into the Union is declared to be complete. 
 
 In testimony whereof, I have caused the seal of the United States of America 
 
 to be affixed to these presents, and signed the same with my hand. 
 
 [l. s.] Done at the City of Washington, the tenth day of August, 1821, and of 
 
 the Independence of the said United States of America the forty-sixth. 
 
 JAMES MONROE. 
 By the President. , . ^ 
 
 John Quincy Adams, iJiid»JCiU(l ^U . 
 
 Secretary of State. 
 
 One other precedent completes the list of those that need to be 
 cited in this opinion ; namely, the case of Nebiaska. 
 
 The following is part of the Act of Congress which prescribed the 
 conditions on which Nebraska was to be admitted: 
 
 Provided^ That the Constitution when formed shall be republican, and not re- 
 pugnant to the Constitution of the United States and the principles of the Declara- 
 tion of Independence ; and provided further. That the said Constitution shall pro- 
 vide, by an article forever irrevocable, without the consent of the Congress of the 
 United States— 
 
 First. That slavery or involuntary seivilude shall be forever prohibited in 
 said State. 
 
 Second. That perfect toleration of religious sentiment shall be secured, and no 
 inhabitant of said State shall ever be molested in person or property on account of 
 his or her mode of religious worship. * 
 
 Third, That the people inhabiting said Territory do agree and declare that 
 they forever disclaim all right and title to the unappropriated public lands lying 
 within said Territory, and that the same shall be and remain at the sole and 
 entire disposition of the United States, and that the lands belonging to citizens of 
 the United States residing without the said State shall never be taxed higher than 
 the land belonging to residents thereof, and that no taxes shall be imposed by said 
 
16 
 
 State on lands or property therein, belonging to or which may hereafter be pur- 
 chased by the United States. * . 
 
 Appendix to the Congressional Globe, pt. 3, 1864. 38th Cong., 1st Sess., 
 P-,,I53- 
 
 Extract from the act admitting Nebraska: 
 
 Sec. 6. This Constitution is formed, and the State of Nebraska asks to be ad- 
 niitted into the Union on an equal footing with the original States, on the condition 
 and faith of the terms and propositions stated and specified in an act of Congress, 
 approved April 19th, 1864, authorizing the people of the Territory to form a Con- 
 stitution and Slate government, the people of the State of Nebraska hereby accept- 
 ing the conditions in said act specified. 
 
 Nebraska. Act of admission, 1867. The Federal and State Constitu- 
 tions, etc., of the U. S., part II. 2d ed. p. 1212. 
 
 From these precedents — and it is unnecessary further to multiply 
 •citations — the following appear to be settled as established principles 
 of Congressional action on the admission of new States into the 
 Union : 
 
 I St. That Congress can prescribe conditions on which a new State 
 shall be admitted into the Union ; and that such conditions do not 
 necessarily relate to matters on which any other State has been re- 
 quired to make provision in its Constitution, but that in each case 
 they may grow out of the particular predicament or situation of the 
 State asking admission. 
 
 2d. That Congress may prescribe the conditions in advance, so 
 that when the State Constitution is presented for the approval of Con- 
 gress, it may be found to contain the conditions ; or the people of the 
 proposed new State may themselves, without previous requirement, 
 present such conditions as they are willing to make. In either mode 
 of action, when the conditions have been sanctioned by Congress, and 
 the State is admitted into the Union with those conditions embodied 
 or fulfilled in its constitution, a compact has been made between the 
 State and the United States. 
 
 3d. That the compact so made may be one that curtails, limits, 
 or diminishes either the sovereignty of the people of the State, or the 
 power of its legislature, in some domestic matter, or it may be one 
 that concerns some property interest or some right of the United States, 
 or of some other State. 
 
 4th. That such compacts, limiting or curtailing the sovereignty of 
 a State, may be absolute, or they may be made in a form that will re- 
 quire the assent of Congress to any change. 
 
 Hence it follows, that the proposal of the Constitution for Utah, 
 whereby the people of that Territory, if admitted under this Constitu- 
 tion, would bind themselves never to change their Constitution in re- 
 :spect to polygamy and bigamy without the assent of Congress, would 
 
IT 
 
 not be a new and unprecedented compact, but that it would be in the 
 same form and the same terms in which similar compacts have been 
 made with other new States. 
 
 The objection, therefore, which has been made to the proposed 
 Constitution for Utah — that the clauses relating to polygamy and bigamy 
 would be of no value, and of no binding force or efficacy, because the 
 sovereignty of a State, after it is once in the Union, cannot be thus 
 controlled — is entirely untenable. Nor is the argument ab inconvenienti 
 of any greater force. The question, as a matter of public policy, is 
 whether the polygamy that has existed in Utah for so long a period 
 can most effectually, easily, and with the least irritation be ended by 
 keeping up the Territorial form of government and by Federal 
 legislation, or by admitting Utah as a State under the proposed Con- 
 stitution, with its prohibition against polygamy and bigamy made 
 operative forever without the previous assent of Congress to any change. 
 The balance of convenience and advantage is by a great weight on the 
 side of admitting the State under the proposed Constitution. It can 
 never be otherwise than inconvenient and embarrassing for Congress to 
 continue to legislate on the subject of polygamy in such a community 
 as Utah, or to deal with the social relations that have grown out of it. 
 It is supposed that the practice of polygamy has arisen out of a pecu- 
 liar religious faith ; and such is undoubtedly the fact. While it is un- 
 questionably true that the legislative power, wherever it resides, can 
 restrain and punish any practice or conduct that is injurious to the 
 welfare of society, although that practice or conduct may be dictated 
 by a sincere religious belief, yet there is always danger of encroach- 
 ment on the rights of religious belief when repressive measures are re- 
 sorted to in respect to any practice or conduct that has its origin in or 
 is connected with a religious faith. Hitherto the legislation of Con- 
 gress against polygamy in the Territories has not escaped this danger ; 
 for, in one respect at least, that legislation has been so interpreted and 
 administered by the Territorial Courts in Utah, that the rights of 
 religious belief have been disregarded, because men have been punish- 
 ed in the penitentiary for conduct that was perfectly innocent in itself, 
 and could have been dictated only by a sense of religious and moral 
 duty. Congress could never have intended such a result of its legisla- 
 tion. It has been one of the consequences of the form of Territorial 
 Government, and of the spirit which that form of government is apt to 
 engender in the administration of laws aimed at a particular offence in 
 
18 
 
 a peculiar state of society. * As the alternative to the longer continu- 
 ance of Utah under the Territorial government, there is now presented 
 a plan for remitting this whole matter of polygamy to the people of 
 Utah themselves, under the guaranty of a public compact with the 
 United States that it shall be forever an offence against the State, and 
 that in this respect the Constitution of the State shall never be changed 
 without the assent of Congress. No reasonable person can doubt that 
 the people of Utah will live up to what they thus promise, because it 
 is plain that they must live up to it after they have made witk the 
 United States the compact which they propose. 
 
 In regard to the clause which proposes to require the assent of the 
 President of the United States to a pardon of the offence of polygamy 
 or bigamy, there can be no possible objection to it as a limitation of the 
 State sovereignty, if the precedents above cited are to be regarded. In 
 principle, it stands upon the same footing as the compacts which have 
 required the assent of Congress to any change in the conditions on 
 which a State has been admitted into the Union. The only possible ob- 
 jection that can be made to it would be that it might be inconvenient 
 to the President. But this inconvenience would practically be very 
 slight. The convict would know that to obtain a valid pardon, he 
 must get the consent of the State Executive and also the consent of the 
 President of the United States. The State Executive would never be 
 likely to send up a case for the consideration of the President without 
 careful investigation ; the papers would come before the President in a 
 shape to enable him to form his judgment very easily ; and there would 
 not be imposed upon him an amount of labor to be compared to what 
 he has to perform whenever he is asked to pardon a person who has 
 been convicted in a Federal Court of an offence against the United 
 States. As the pardon of the State Executive must first be obtained, the 
 responsibility resting on the President would be far less than in the 
 case of offences against the United States. 
 
 Finally, it is to be noted that the Supreme Court of the United 
 States has expressly held it to be no objection to the validity of 
 a compact made by a State, that it diminishes the State sover- 
 eignty. It was so held in relation to a special compact that was 
 peculiar to the situation of the State in question. In 1823 the 
 Supreme Court held that it is not a valid objection to a com- 
 pact made between two States, with the consent of Congress, 
 that it restricts the legislative power of one of them in certain par- 
 
 * See The Forum for November, 1887, article entitled ** Shall Utah Become a 
 State," for an explanation of the Federal legislation and the mode of its ju4iciJVl 
 administration in the Territory of Utah, 
 
19 
 
 ticulars. (Green 1). Middle, 8 Wheaton, i. See also Spooner v^ 
 McConnel, i McLean, 337.) 
 
 The Supreme Court of the United States has also had occasion to 
 pass upon compacts made between a State and the United States, and 
 has upheld them as valid and binding. 
 
 (See Wright v. Stokes, 3 Howard, 151 ; Neal v. Ohio, Ibid., 
 720. Atchison v. Huddleston, 12 Howard, 293.) 
 
 Perhaps it is not strictly within the scope of the opinion that I 
 have been asked to give, for me to point out in what way there would 
 be a remedy, if the people of Utah, after they had been admitted as a 
 State under the proposed Constitution, were to undertake to repeal or 
 change their Constitution, in the particulars in question, without the 
 assent of Congress, and thus to give a tacit toleration or sanction to 
 the further practice of polygamy. This would be a rather wild suppo- 
 sition, inasmuch as such action could give no legal existence whatever 
 to plural marriages, and there is, therefore, no likelihood that they 
 would ever be entered into. But let the supposition be made. Inas- 
 much as the corner-stone of my position is that the breach of the pro- 
 posed compact would not be without remedy, I will, in consistency 
 with myself, state what I hold that remedy to be. 
 
 There is a clause in the Constitution of the United States which 
 was designed to confer on Congress legislative power to carry into effect 
 every part of that Constitution which requires legislative action for its 
 execution. The clause is the last in Section 8 of Article I., and is in 
 these words : 
 
 ** The Congress shall have power to make all laws which shall be necessary 
 and proper for carrying into execution the foregoing powers, and all other pow- 
 ers vested by this Constitution in the Government of the United States, or in any 
 department or oflScer thereof." 
 
 It has never been my tendency to magnify the scope of implied 
 powers. But on the construction and operation of the clause just 
 quoted, in the matter now under consideration, I cannot have any 
 doubt whatever. One of the express powers vested by the Constitu- 
 tution in Congress is the power to admit new States into the Union. 
 It has been seen that by a course of very strong precedents this power 
 has been considered as embracing a clear authority to prescribe condi- 
 tions of admission. Such a steady and uniform practical construction 
 of this power is of very great weight ; and assuming that the power 
 to impose conditions exists in ample authority, because it has been 
 r epeatedly exercised without ever being successfully denied, the ques- 
 tion is whether Congress is not clothed with authority to make all law;^ 
 
20 
 
 which shall be necessary and proper to enforce those conditions, in 
 case they are broken. I cannot doubt that it is. The legislation that 
 would be appropriate and necessary would be that which would reach 
 and restrain or punish individuals who should undertake to avail 
 themselves of the State authority or assent to a practice which the State 
 has covenanted with the United States shall not be tolerated in her 
 borders. 
 
 Take as an illustration one of the prohibitions resting on the 
 Slates: " No State shall, without the consent of Congress * * * 
 enter into any agreement or compact with any other State. " If any 
 State were to do so, Federal legislation would easily reach, restrain or 
 punish individuals who should do any act in carrying out the un- 
 constitutional compact or agreement, or claim any benefit from it. 
 The reason why we have not had such legislation has not been because 
 it could not constitutionally exist. 
 
 Before 1 860-61, no State broke a special compact which it made 
 with the United States when it entered the Union. After that period, 
 when some of the States undertook, by secession from the Union, to 
 break the grand compact between themselves and the United States 
 that is embraced in the Constitution, we had abundant Federal legisla- 
 tion to reach, restrain and operate upon the inhabitants of those 
 States ; and it will not do at the present day to question the funda- 
 mental principle on which much of that legislation was based. 
 
 It has been urged that a preferable mode of dealing with polygamy 
 
 would be by an amendment of the Constitution of the United Slates, 
 
 rather than by admitting Utah under the proposed State Constitution. 
 
 An amendment was introduced Jn the last Congress, which was 
 
 drawn in the following terms : 
 
 Sec I. The marriage relation, by contract or in fact, between one person oi 
 either sex and more than one person of the other sex, shall be deemed polygamy. 
 Neither polygamy nor any polygamous association or cohabitation between the sexes 
 shall exist or be lawful in any place within the jurisdiction of the United States or 
 of any State. 
 
 Sec 2. The United States shall not, nor shall any State, make or enforce any 
 law which shall allow polygamy or any polygamous association or cohabitation be- 
 tween the sexes, but the United States and every State shall prohibit the same by 
 law within their respective jurisdictions. 
 
 Sec 3. The judicial power of the United States shall extend to the prosecu- 
 tion of the crimes of polygamy and of a polygamous association or cohabitation 
 between the sexes under this article, and Congress shall have power to declare by 
 law the punishment therefor, ^ 
 
 Sec. 4. Nothing in the Constitution or this article shall be construed to deny to 
 any State the exclusive power, subject to the provisions of this article, to make and 
 enforce all laws concerning marriage and divorce within its jurisdiction, or to vest 
 n the United States any power respecting the same within any State. 
 
21 
 
 The objections to this proposed amendment may be thus sum- 
 marized : 
 
 I St. The Constitution of the United States should not be amended 
 without some public necessity, to accomplish an object of common 
 cencern to the people of the United States, which cannot be accom- 
 plished as well, or cannot be accomplished at all, by some other 
 method. Multiplication of Constitutional amendments, and the invo- 
 cation of the necessary machinery, are very undesirable. 
 
 2d. No State in this Union has ever had any practice of polygamy 
 among its people, as a recognized social relation, having its origin in 
 or being in any way connected wiih a religious faith, or having its ori- 
 gin in anything else. The crime of bigamy, sporadically occurring, 
 and always clandestinely, is punished by State statutes, and needs no 
 Federal interference. The normal and unchangeable relation of mar- 
 riage in all the States is monogamy : and no State is in any peril of 
 polygamy, or needs to invoke the aid of the United States to prevent 
 any change in its civiligation in this respect. 
 
 3d. Polygamy is a practice that has existed as an open and recog- 
 nized relation between the sexes only in two or three of the Territories 
 of the United States. It has existed more extensively in Utah than in 
 any other Territory, but it is a well ascertained fact that even in that 
 Territory, where a large majority of the inhabitants hold the religious 
 faith that is supposed to sanction this form of the marriage relation, 
 only two or three cases of prosecution for new polygamous marriages 
 have come before the criminal courts of the Territory in the past two 
 years, under the Federal statutes. To put in motion the machinery of 
 amending the Constitution of the United States, in order to end this so- 
 cial evil in a certain locality, rather than to rely on the provisions and 
 compacts of the State Constitution proposed by the Mormon inhabi- 
 tants of Utah, would be manifestly inexpedient and unnecessary'. 
 
 4th. The proposed amendment of the Federal Constitution is objec- 
 tionable in the following particulars : 
 
 Section i, which prohibits polygamy in any State, proposes to inter- 
 dict something that does not now exist in any State, and is in no like- 
 lihood of ever existing there. 
 
 Section 2 requires every State to prohibit polygamy within its juris- 
 diction, although in every State a polygamous marriage is now bigamy 
 by statute law. 
 
 Section 3 extends the judicial power of the United States to the 
 prosecution of the crime of polygamy, although that offence is now a 
 crime in every State against the State itsel£ 
 
Sectioii 4 introduces what would be found to be ati embarrassing 
 confusion between the State jurisdiction over marriage and divorce, 
 and the proposed Federal jurisdiction over polygamy. 
 
 All the sections i, 2 and 3 introduce, beside the definition of polyg- 
 amy, the undefined and uncertain offences of "polygamous associa- 
 tion or cohabitation between the sexes. " Polygamy is easily defined 
 as the marriage of one man and more than one woman. Polygamous 
 association or cohabitation between the sexes is either a needless tau- 
 tology, or, if it was intended to make a distinct offence, the framers 
 of the amendment have not defined it, and they probably could not. 
 What comes of leaving the definition of ** cohabitation " to judicial in- 
 terpretation, as an offence distinct from polygamy, has been abun- 
 dantly and cruelly illustrated by the judicial administration of the 
 Federal statutes in Utah, where men who did not live with any plural 
 wife have been consigned to the penitentiary for supporting and show- 
 ing perfectly innocent and harmless attentions to women whom they 
 married long before there was any law prohibiting such marriages. 
 
 Speaking as a citizen of the United States and of one of the States of 
 the Union, I should be unalterably opposed to a cession to the Federal 
 Government of any power to regulate the marriage relation, in any form, 
 in the States. In the Territories and in the District of Columbia, the 
 United Stales have now all the authority over the marriage relation that 
 is needful, and in respect to the Territories more authority than has 
 been wisely used. I should gladly do anything in my power to end 
 what polygamy remains, in a merciful and Christian spirit ; and, 
 speaking as a lawyer, I have no hesitation in saying that the compact 
 which the Mormon inhabitants of Utah now offer to make with the 
 United States would be, in my judgment, perfectly valid, consistent 
 with our system of government, and efficient for everything that can 
 be desired. 
 
 GEO. TICKNOR CURTIS, 
 New York, Oct. 25, 1887. 
 
Lithomount 
 
 Pamphlet 
 
 Binder 
 
 Gay lord Bros. 
 
 Makers 
 
 Syracuse, N. Y. 
 
 PAT. JAN 21, 1908