A review of the decision of the Supreme Court of the United States, the case of Geo. Reynolds vs. the United States

Contents

PAGE

Introduction. - i

Chapter I

Views of Latter-day Saints respecting First Amendment to the Constitution. — Views of the U. S. Supreme Court. — The Virginia Declaration of Rights. — Mr. Madison’s position respecting the extent of Religious Liberty, -- 7

CHAPTER IT.

Memorial of the Hanover Presbytery and the Baptists, by Mr. Madison, for Religious Liberty.— Christianity itself not to be preferred to the ^elusion of other Religions. — Plural Marriage as a Religious Ordinance p3*otected by the Virginia Act establishing Religious Freedom. - - M - - lo

Chapter III

Mr. Jefferson and the Virginia Act establishing Religious Freedom. — The Jew and the Gentile, the Christian and the Mohammedan, the Hindoo and the Infidel comprehended within the mantle of its protection.— Protected in their mere opinions alone and not in their acts?— Locke would not exclude Pagan. Mohammedan or Jew from civil rights because of his Religion. — Liberality of Burlamaqui, Vattel, Charles II, and Blackstone respecting the Rights of Conscience.— Washington to the Army.— All Religious rites, ceremonies and practices, which do not interfere with the rights and liberty of others, equally protected. 15

Chapter IV

Jefferson’s own definition as to the Legitimate Powers of Government in Religious affairs. — To extend to such acts only as are injurious to others. — Liberty of Opinion and Practice an Indefeasible Right.— Agreement of Jefferson and Madison as to the Rights of Conscience and bounds of Religious Liberty. — Jefferson condemned for giving Paganism and Mohammedanism the same Religious Liberty and Protection as Christianity.— Mistaken View by the United States Supreme Court of the scope and effect of Jefferson’s law. — Religious Liberty in Rhode Island two hundred years ago. - - 19

IV

CONTENTS.

Chapter V

Restrictions upon Religious Liberty in the Colonies. — Debates upon the adoption of the Constitution of the United States. — In Virginia, Massachusetts, and North Carolina. — No one to be excluded from National Trusts because of any Religion or the want of any Religion. — Shall Pagans, Deists, and Mohammedans obtain office ? — How is it possible to exclude them ?— Can be elected President or other high officer in one of two cases only. — Papists and Mohammedans may occupy the President’s chair.— Nothing against this; - - 23

Chapter VI

Bigamy punishable with death. — But not applicable to Patriarchal Marriage.— Objection in New England to the Constitution was it opened a door for Jews, Turks and Infidels. — Asiatic religions being protected, the Patriarchs, were they here, would also have liberty of action.— The exemption of Latter-day Saints from punishment would not introduce new element into criminal law. — The crime of Bigamy totally unlike Patriarchal Marriage. — Sir Samuel Romilly on Bigamy.— Unfair statement to say “Mormons” desire, because of religious liberty, to violate law, for the violation of which, others, not of their religion, are punished. — Law of 1862 enacted for “Mormons” only. — No attempt to enforce it against others. - - - - 28

Chapter VII

Can Murder be practiced under claim that it is Religion ’I— Mala in se and mala prohibita. — Polygamy a statutory crime. — Thuggism and Sutteeism.— An absurd comparison. — Revolt of Nature at the sight of Murder. — Patriarchal Marriage in Utah not criminal. — Neither Men, Women, nor Children wronged.— Liberty of Woman greater than that of Man. — Plural Marriage not evil in its own nature.— Grotius, Theodoret, St. Ambrose, St. Chrysostom, St. Augustine. — Plural Marriage not a crime against law in Utah until 1862. —John Adams’ Liberal Views of our system of Religious Liberty. - 33

Chapter VIII

Government cannot prescribe Rights of Conscience.— If Patriarchal Marriage can be declared outside of Religion, the Celibacy of Priests can be so declared.— Celibacy and Auricular Confession called Fruitful Sources of Evil. — Precautions to protect Virtue against Celibates. — Pretexts for Legislating against the practices of Unpopular Religions easily obtained. — Who shall declare what is Religion ? — Obedience to Patriarchal Marriage known to be the will of Heaven.— This the only cause of its existence. — The law of 1862 a blow at Religion.— Indifference of Congress to crimes as such.— A Paradox. — Every Woman should hav.e the Privilege to Marry.— Crime of “ Mormons ” not in Seducing, but in Marrying Women. — All human odds are against such Marriages.— Uniformity reached by Truth and Reason easier than by Coercion. — Jefferson upon Uniformity. ----- 39

CONTENTS.

V

Chapter IX

“Mormons” punished for violating Jaw, not for Religion. — History full of similar instances. — If our practices are false we shall have to suffer the consequences.— Not Man’s prerogative to punish purely Religious offences. — Disposition to inflict purgatory here. — Lieher upon laws respecting Religion. — Montesquieu counsels the avoidance of Religious penal laws. — Tucker as to protection due from the State. — Vattel upon what Citizens have the right to do to avoid violating their Consciences.— For peace and liberty of Conscience, “Mormons” placed twelve hundred miles between themselves and those to whom their Religion was obnoxious. — Happy condition of affairs in Utah. — Introduction of Vice, and efforts to overthrow Religion. — Crowning Outrage. -

A REVIEW OF THE DECISION

OF THE

Supreme Court of the United States,

IN THE CASE OF

Geo. Reynolds vs. The People of the United States.

Introduction

Through the newspaper press, the public have been made acquainted with a recent decision of the Supreme Court of the United States upon the question of the constitutionality of a law of Congress passed July 1st, 1862, which, as found in Section 5352, Revised Statutes, and omitting the exceptions, reads as follows :

“Every person having a husband or wife living, who 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 an “imprisonment for a term of not more than five years.”

Mr. George Reynolds, a citizen of Utah Territory, having married a second wife while his first wife was still living, and this in conformity with the requirements of his religion, was indicted under the above statute, by a grand jury, at Salt Lake City, on 28d October, 1874. Under this indictment he was tried and convicted. An appeal was taken to the Supreme Court of the Territory, and the case was dismissed because the grand jury who found the indictment was an illegal one. This was on 19th June, 1875. He was again indicted on 30th October, 1875. And under that indictment was again tried in the District Court for the same offence. He was convicted and sentenced to two years at hard labor and to pay a fine of five hundred dollars. After the rendition of the verdict, it was discovered that the defendant had not been asked to plead guilty or not guilty; but he waived the informality, plead not guilty, and it was

A REVIEW.

then entered upon the record. An appeal was taken to the Supreme Couit of the Territory, and it affirmed the decision of the inferior court. This was on 6th July, 1876. From the Supreme Court of the Territory an appeal was taken to the Supreme Court of the United States, the case was put forward on the calendar, and it was heard by the latter court on the 14th and 15th of November, 1878. The Attorney General of the United States appeared in the case for the Government, and George ^Y. Biddle, Esq., of Philadelphia, Pennsylvania, and Ben Sheeks, Esq., of the firm of Sheeks & Rawlins, of Salt Lake City, Utah Territory, appeared for the appellant. The decision was given on Monday, January 6th, 1879. A petition for a rehearing was afterwards presented by the counsel for the appellant, with what effect is not known at this writing.

It will be perceived that the court, in sentencing Mr. Reynolds, exceeded the law. It sentenced him to imprisonment with hard labor. The statute limits the punishment to fine and imprisonment. The Counsel, in asking for a rehearing, state that all the authorities agree in saying it is an error to add hard labor to the punishment, if not provided for by law; and they refer for support of the petition to two or three of the more prominent ones. It is to be hoped that the Court will give heed to this petition, and grant the rehearing asked for. Blackstone,* upon this subject, says:

“And it is moreover one of the glories of our English law, that the “species, though not always the quantity or degree, of punishment is ^‘ascertained for every offence; and that it is not left in the breast of any “judge, nor even of a jury, to alter that judgment, which the law has “beforehand ordained, for every subject alike, without respect of persons. “For, if judgments were to be the private opinions of the judge, men “would then be slaves to their magistrate; and would live in society with- “out knowing exactly the conditions and obligations which it lays them “under.”

Certainly this Government cannot afford to punish the humblest of its citizens wrongfully. The Supreme Court, elevated as it is above all courts in the land and above all its citizens, is not so high that it can justly deny to the lowliest and most oppressed, even though accused of crime, his rights as a citizen, without a sacrifice of its own honor and dignity. It should be remembered that “ one foul sentence does more “harm than many foul examples; for the last do but corrupt the stream, “while the former corrupteth the fountain.”

In the decision upon this case by the Supreme Court of the United States, the assignments of error, as presented by Messrs. Biddle and Sheeks, when grouped, presented six questions. As four of these are

Blackstone, pp. 377, 378.

A KEVIEW.

altogether technical, I shall not allude to them. The discussion of the constitutional aspect of the case by the Court is confined to the fifth question, and, as it is my purpose to examine that only, I only publish in the appendix the fifth and sixth questions of the decision. Mr. Chief Justice Waite delivered the opinion of the Court.

In approaching the investigation which I propose of this decision and the foundation upon which it rests, I feel great diffidence. The Supreme Court of the United States is a tribunal towards which I have ever looked with respect and reverence. Its decisions are entitled to the greatest consideration. They carry with them the weight of great authority. Individually, the members of the Court occupy a high place in the public confidence and esteem. Their lives, and the events and actions of their lives, for many years, are before the world, and form a conspicuous part of the history of the country. United as they are in the capacity of a Supreme Court of this great nation, they form a judicial tribunal which is not surpassed, if equalled, in dignity by any other on earth. These considerations are sufficient to cause me to feel a delicacy in reviewing any decision made by that Court, and my embarrassment is not lessened by the fact that several of them are my personal friends, from whom I have received kindnesses, and to whom I feel under obligations. Nothing, therefore, but a high sense of duty could impel me to take up my pen and make public any criticism or review of their action. But in this case the great principle of religious liberty is at stake. My own rights, the rights of my co-religionists, the rights of men of every creed and of no creed, the rights of my posterity, and the posterity of every citizen of this great Republic, are stricken down by the Court’s decision. Its effect is far-reaching, and, if unreversed, will be attended by most disastrous consequences to the people of this nation and their posterity. If there be one human right higher, dearer, and for which greater sacrifices should be made, than another, it is the right of conscience, the right involved in this decision. It may seem presumptuous in me to question the correctness of the doctrine advanced by the Supreme Court. Yet, before I get through with this investigation, I think I shall be able to show, with, as I hope, only becoming modesty and proper firmness, that their decision is extra judicial; that the law concerning which it was delivered not only violates the Constitution of the United States and is in direct opposition to the sentiments and views of the men who framed that instrument, but offends against the Divine law. High as is my respect for the Supreme tribunal of the land, my respect for the Constitution and my reverence for God are higher. I cannot assume for human laws and human decisions that which I assume for God’s laws — that they are beyond question. To do so would be to claim for their fallible authors an infallibility which belongs only to the Creator. I cannot

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exalt man to an equality with God. That the laws of Congress have not always been constitutional and perfect, that the decisions of the Supreme Court have not always been infallible, the history of the nation clearly establishes. It requires no great age, no venerable experience, to remind citizens of this fact; men of middle age have but to contrast the present with the past, which they can recollect, to convince themselves of it.

When this decision was rendered, I was disappointed. When I had the opportunity of reading it, my disappointment was increased. I had hoped that the Court would give to this question — one of the most important that has ever been submitted to it — the most calm, profound and unprejudiced attention; that they would examine it thoroughly and exhaustively, and render a decision that would be read with interest and delight by every lover of freedom and the rights of man. No grander opportunity was ever offered to a court to do this than the Reynolds case afforded. But one has only to read the document to perceive that the Court failed to grasp the magnitude of the question, or to rise to its proper conception. I venture to say that no constitutional lawyer — and in fact no layman who has given the questions involved in this case any consideration whatever — who takes pride in the reputation of the Court, can help having a feeling of regret in reading the decision. It is superficial, careless and immature. It reads more like the plea of an advocate than the well-considered, thoroughly weighed and ripe decision of great judges upon an important and long agitated constitutional question. Such a decision upon a case involving a few thousands of dollars, though open to dissent and perhaps censure, might be excused upon the plea of a pressure of current business; but upon a case of this magnitude, affecting, as it does, the rights of conscience and religious liberty of a large and important society, who form the bulk of the population of one Territory, and important communities in other Territories, far-reaching, too, in its effects upon those rights and that liberty in the nation at large, such treatment of the question is utterly out of keeping with the character of this Supreme earthly tribunal.

With the enormous amount of work the Court has to attend to it is not surprising that the Justices should largely avail themselves of the briefs of counsel in preparing their decisions upon the cases tried before them. The full justification for this can be found in the want of time to hunt up and compare authorities. It is not difficult to perceive that the brief of the Attorney-General in the Reynolds case was freely used. The references to human sacrifices and the burning of widows being claimed as a part of religion, as well as the general tone and argument of the decision, lead to this conclusion. The practices of the Thugs and the practice of Suttee was a part of the Attorney-General’s argument, as I saw it reported. I am assured, by responsible parties with whom he con-

A REVIEW.

versed, that he claimed the decision as his own. I am relieved from embarrassment in reviewing this opinion by this statement.

Early in my life I was taught that the founders of our Government were raised up by the Almighty to perform the work which they accomplished. I was taught to look upon the experience which the colonies underwent in the suffering of wrongs, in the endurance of oppression, in the struggles for religious and political liberty, as a preparatory training to enable them to value, contend for and achieve independence. I was taught that the firmness, valor and undaunted cheerfulness, hope and confidence of Washington, and the heroic men who shared with him the perils of the battle-fields of the Revolution, the wisdom and skill and moral courage in council of the Adamses, Franklin, Jefferson and Madison, and the mighty patriots, their compeers, were due to the direct blessing and inspiration of Heaven bestowed upon them. I was taught to view the Declaration of Independence and the Constitution of the United States as instruments designed by the Almighty for the establishment and protection upon this land of the most perfect and happy liberty to which mankind could attain in this mortal existence. In stating in this manner that which I was taught, I but state that which all of my co-religionists who have been brought up in our faith have been taught. I only state, also, that which is a cherished belief with them and myself to this day. Imagine the disappointment, then, which we felt when we heard from the Supreme Court of the United States, which has the authority to pronounce upon what is constitutional and what is unconstitutional, that in our religious faith and practice we were not protected by the Constitution, but could be legally and constitutionally dishonored, stripped of our property, immured in prison and disfranchised for the practice of that which we believe the Lord had commanded us to obey! Had we' been deceived ? Were we and other people protected by the Constitution in our religious belief and opinions only, and not in actions springing from and prompted by that belief? Had Congress the right to interfere with religious practices?

Believing that the Lord had led the framers of the Constitution to make it sufficiently broad and comprehensive for all His purposes, and that He had commanded us to receive the old marriage practiced by the patriarchs, the decision of the Supreme Court placed us in a quandary. If, as is undoubtedly true, the Lord had a perfect knowledge of the Constitution and its powers and limits when He required us to obey the commandment referred to,* how came this decision of the Supreme Court? Certainly He had not left the charter of our liberties in so imperfect a condition that Congress could, by its authority, make a law by which we

Revelation given July 13th, 1843.

A REVIEW.

should be fined, imprisoned and degraded for obeying Him. Such a thought was repugnant to every feeling of my nature. Was it possible, then, that the Supreme Court had made a wrong decision ? Keluctant as I was to let this thought enter my mind, it was my only alternative. Here was the Supreme Court of the United States on one side and the Lord upon the other. One, the Supreme earthly tribunal, the other, the Supreme Ruler of Heaven and earth. There could be no hesitation in concluding which was right. But to merely assert it was unworthy of the cause and the tremendous issues involved. Proofs were needed. It is to produce these that I write these pages — to show the men of this nation, religious and irreligious, how comprehensive a Constitution we have; to show that under that glorious instrument the orthodox and the heterodox, the popular and the unpopular, the McCloskys, the Chapins, the Fotheringhams, the Simpsons, the Beechers, the Talmages, the Collyers, the Cooks, of every denomination, aye, even the worshipers of Pagan deities, the Ingersolls, and the “Mormons,” have perfect liberty of worship, in faith and works, in every corner of this continent covered by the Constitution, so long as their belief and practice do not mterfere with the rights of their fellow-men. And it is an extraordinary fact, that, to prove this broad statement, it is only necessary to refer to the same works from which the decision quotes, and upon which its conclusions are based ! Not the least of the considerations which prompt me in this review, is that I desire that all the people of my faith may know that we have not been deceived in our ideas respecting the Constitution and our rights under it; that if we are to be stricken down, though I cannot believe we shall be, it shall not be in ignorance nor in doubt as to the wrongfulness of the blows from which we suffer; that our children may know that we fell contending for constitutional rights, liberty of conscience for ourselves and all others; and that they — in that event more fortunate than we — having a complete knowledge of the powers and liberty granted by the Constitution, may bear it aloft and make it effective, in fully protecting the freedom of conscience and rights of worship of the Catholic and the Protestant, the Jew and the Gentile, the Pagan and the Mohammedan, the Infidel and the Latter-day Saint.

A EEVIEW.

CHAPTEK I.

Views of Latter-day Saints respecting First Amendment to the Constitution. — Views of the U. S. Supreme Court. — The Virginia Declaration of Rights. — Mr. Madison’s position respecting the extent of Religious Liberty.

The first amendment to the Constitution is to the efiect that “Congress shall make no law respecting an establishment of religion, “or prohibiting the free exercise thereof.”

The Latter-day Saints, or “ Mormons ” as they are frequently called, who reside in Utah and the valleys contiguous thereto, have always maintained that their system of plural or patriarchal marriage, being a part of their religion, was shielded from legislative interference by the above amendment to the Constitution. Congress, disregarding this claim, enacted the statute which I have quoted on my first page. The Supreme Court, by this decision, decides that Congress has the power under the Constitution to do this. The Court proceeds to determine the question as to the constitutionality of the law, by asking, “ What is the religious free- “dom which has been guaranteed ?” This has been the question at issue since the passage of the law. It might be condensed into these words : What is religion? We claim that this doctrine, and the practice flowing from our belief in this doctrine, is religion. Congress has decided, and now the Court decides, that this is not religion. The issue is direct, well-defined, and easily understood. The grounds upon which the decision of the Court is based, I shall state as briefly as I can, and be absolutely fair. To the events of history mentioned by the Court, I shall only allude when necessary to make my points more clear.

We are told that the word “religion” is not defined in the Constitution. For its meaning, therefore, we are referred to the history of the times in the midst of which the provision passed. In the preamble of the Act “for establishing religious freedom,” drafted by Mr. Jefferson, (and now found in 12 Hening’s Stat,, 84,) we are informed that religious freedom is defined. The following quotation from that preamble is then given: “That to sufiTer the civil magistrate to intrude his powers into the “field of opinion, and to restrain the profession or propagation of princi- “ples on supposition of their ill tendency, is a dangerous fallacy which at “once destroys all religious liberty.” It is declared “that it is time enough “for the rightful purposes of civil government for its officers to interfere “when principles break out into overt acts against peace and good order.” “In these two sentences is found the true distinction,” the Court says, “between what properly belongs to the Church and what to the State.”

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Following this is a quotation from Jefferson’s reply to an address to him from a committee of the Danbury Baptist Association, to the effect “ that the legislative powers of the Government reach actions only, and “not opinions;” and that he “shall see with sincere satisfaction the “progress of those sentiments which tend Jo restore man to all his natural “rights, convinced he has no natural rights in opposition to his social “duties.” Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted, the Court says, almost as an authoritative declaration of the scope and. effect of the first amendment to the Constitution.

It will be seen that Mr. Jefferson is relied upon by the Court as an authority upon this question of religious freedom. He framed the Virginia Act for establishing religious freedom. He advocated and approved of the first amendment to the Constitution. So confident is the Supreme Court that he knew all about the meaning, scope and effect of each of these that it quotes no other authority. We desire this to be remembered, as we shall have occasion hereafter to refer to Mr. Jefierson and his views. In one sentence the Court, from his sayings which it quotes, thus summarizes its conclusions;

“ Congress was deprived of all legislative power over mere opinion, “but was left free to reach actions which were in violation of social duties, “or subversive of good order.”

This Act for establishing religious freedom was not the first measure relating to religion enacted by the Virginia Assembly. Nine years before its passage the representatives of the people of Virginia, in convention assembled, adopted a “ Declaration of Rights.”* Mr. Madison was a member of that Convention. As he, no less than Mr. Jefferson, was an important actor in those stirring scenes, and took a leading part in securing freedom of conscience, it is indispensable, for the more perfect understanding of that great right, that we should learn his views and action upon it. If one man more than another can be credited with being the author of the Constitution of the United States, he is that man. This “ Declaration of Rights” of Virginia was passed when men’s minds were aflame with the spirit of liberty. The just rights of the people, the limits which should define properly constituted governments, were with them at the time the constant subjects of thought. Section 16 of that Declaration says :

“ That religion, or the duty which we owe to our Creator, and the “manner of discharging it, can be directed only by reason and conviction, “not by force or violence, and therefore all men are equally entitled to the “free exercise of religion, according to the dictates of conscience ; and that

A EEVIEW.

“it is the mutual duty of all to practice Christian forbearance, love and “charity towards each other.”

Eespecting this clause, we are informed by the biographer of Mr. Madison,* that it was drafted originally by Col. George Mason, but not in its present form. His draft contained the words, “ All men should therefore “enjoy the fullest toleration in the exercise of religion, according to the “dictates of conscience, unpunished and unrestrained by the magistrate, “unless, under color of religion, any man disturb the peace, the happiness, “or the safety of society.” It might be thought that such a well-guarded provision as this would not be objected to on account of it not being sufficiently liberal. The select committee having the subject in hand evidently thought it right, for they reported it without suggesting any amendment. But we are informed that to Mr. Madison there seemed to be an implication both dangerous and illogical in the use of the word toleration, as well as in the clause which admitted the restraining and punitive interposition of the civil magistrate in cases where the peace of society might be supposed to be endangered. Toleration might be used where a certain liberty of worship is granted, not of right but of grace. He was opposed to giving the civil magistrate the authority to interfere in cases where the peace of society might be alleged to be in danger of being disturbed under color of religion. He perceived that the liberality of the first part of the section might be impaired, if not annulled, in the hands of the civil authority by the construction that might be put upon the latter part. He was a modest man, he paid deference to age and experience. Col. Mason and other members of the committee possessed both. He was, therefore, reluctant to ofier any suggestion of his own to the Convention. But he had a strong sense of duty, a profound love for religious freedom in its utmost latitude. He proposed an amendment which asserted the inherent and indefeasible right, by nature, to freedom of religion, and declared that “ all men are equally entitled to the full “and free exercise of religion, according to the dictates of conscience.” To close the door more effectually against the abuse of authority by the civil magistrate under the clause of exception drafted by Col. Mason, Mr. Madison’s amendment added that “ no man, or class of men, ought, “on account of religion, to be invested with peculiar emoluments or privi- “leges, nor subjected to any penalties or disabilities, unless, under color of “religion, the preservation of equal liberty and the existence of the State “are manifestly endangered.”