Full text of "Marriage : monogamy and polygamy on the basis of divine law, of natural law and of constitutional law : an open letter to the Massachusetts members of Congress, by one of their constituents, with observations on the opinion of the Supreme Court in Reynolds vs. United States, 98 U.S. Supreme Court reports"

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BANCROFT
LIBRARY

THE LIBRARY

THE UNIVERSITY
OF CALIFORNIA

MORMON

A LETTER

THE MASSACHUSETTS MEMBERS OF CONGRESS

PLURAL MARRIAGE:

Its fSoralttg anlr 3Lafofuhte*&

A CITIZEN OF MASSACHUSETTS.

" We want a state of things which allows every man the largest liberty compatible with
the liberty of every other man." — R. W. EMERSON, in Fortune of the Republic.

" Our churches represent only ignorance, bigotry, and tyranny, when they deal with
human nature." — ANDREW JACKSON DAVIS.

BOSTON :
JAMES CAMPBELL.

1882.

ETHICS,

PHILOSOPHICAL AND POLITICAL.

'ercive and arbitrary measures can never make a man moral, or
inspire him with incentives to do right. Man's normal condition is
freedom. ... It is an impertinence to thrust one man's belief upon
another for his direction. The passion to exercise dominion over an-

is diabolical. There is no goodness where liberty is interfered
with." — PROF. ALEXANDER WILDER.

•thing is more sacred than human natural rights. No crime is
more heinous than their violation. The Declaration of Independence
asserted them. Revolutionary heroes suffered and died to protect them
from invasion. The Constitution was ordained and established to secure
them. Faithless, recreant to their oaths and their trusts, are public
men who subordinate the prime objects of the Constitution to their per-
sonal or denominational religious preferences. Thereby they pervert
justice, retard the general welfare, and abridge the blessings of liberty
to the people of the United States and their posterity." — A. E GILES.

11 Wherever the flag floats, wherever an American is found within the
jurisdiction of the Republic, are those fundamental principles of liberty
which are the inheritance of the race, and which, for greater safety, were
enumerated in the Federal Constitution, as they are in the State Consti-
tutions. They existed long before these written declarations of the public
will, and will doubtless long survive them. Our ancestors did not claim
representation in the British Parliament ; but they did claim that they
carried with them into every settlement, however distant or humble, the
rights of Englishmen, and to those they made good their title. It is clear
that, in like manner, every American, wherever he may go within the
limits of his free country, carries with him the safeguards of American
liberty. Congress cannot erect a mere despotism in Utah any more than
it can erect one in New York. The property, the liberty, the family
relations of citizens, cannot lawfully be placed at the mercy of a board of
five men deriving their power from another man, in one place or the
other." — NEW YORK SUN, March 29, 1882.

MARRIAGE,

MONOGAMY AND POLYGAMY

THE BASIS OF DIVINE LAW, OF NATUKAL LAW, AND OF
CONSTITUTIONAL LAW.

A 1ST OPEN LETTEK

TO THE MASSACHUSETTS MEMBERS OF CONGRESS, BY ONE OF THEIR

CONSTITUENTS, WITH OBSERVATIONS ON THE OPINION

OF THE SUPREME COURT IN

Reynolds vs. United States, 98 U. S. Supreme Court Reports.

A CITIZEN OF MASSACHUSETTS.

3&eltgtoits JFmtiam, not Persecution, solbes tije fHormon

JUSTICE vs. INTOLERANCE.

"And there arose on that day a great persecution against the church which was
in Jerusalem." — ACTS viii. 1.
" The blood of the martyrs is the seed of the church." — TERTULLIAN.

BOSTON :

JAMES CAMPBELL.

1882.

Entered, according to Act of Congress, in the year 1882,

BY JAMES H. HART,
In the Office of the Librarian of Congress, at Washington.

BANCROFT
UBRAJJf

PBEFATOEY.

UNTOWARD circumstances have prevented the publication of this
letter, which was written prior to the passage in Congress of the
so-called Edmunds Bill, until the present time. Believing that in
a republic only fair dealing — not oppression — can promote gen-
eral peace, prosperity, and happiness, the writer, who has hitherto
voted with the Republican party, views with abhorrence its pro-
posed unjust and tortuous legislation in respect to the Mormons,
and hopes that certain considerations in this letter, though late,
are yet not too late to be of service in solving the Mormon
problem.

APRIL 6, 1882.

CONTENTS.

LETTER 9

PART I.

MONOGAMY AND POLYGAMY ON BASIS OF DIVINE LAW AND OF
NATURAL LAW . .9

PART II.

MARRIAGE, MONOGAMIC AND POLYGAMIC, ON BASIS OF CONSTI-
TUTIONAL LAW. SUPREME COURT'S OPINION IN REYNOLDS
vs. UNITED STATES EXAMINED . . (. . . .35

PART III.

APPENDIX.

I. CITATIONS JUSTIFYING POLYGAMY 64

II. DR. FRANKLIN'S APOLOGUE, OR LESSON OF RELIGIOUS TOL-
ERATION 66

III. LAWS OF VIRGINIA, OCTOBER, 1785, K)TH OF COMMON-

WEALTH, CAP. XXXIV. AN ACT FOR ESTABLISHING
RELIGIOUS FREEDOM 67

IV. TEXT OF so MUCH OF CHIEF JUSTICE WAITE'S OPINION AS

RELATES TO THE DEFENCE OF RELIGIOUS BELIEF OR
DUTY 69

TABLE OF CERTAIN MATTERS HEREIN.

PAGE

CONSTITUTIONAL ARGUMENT 35

CRIME, NATURE OF 31

DIVINE LAW OF MARRIAGE )

> BY REV. DR. MADAN . . . 16-20
DIVINE LAW OF POLYGAMY >

MARRIAGE MADE A SACRAMENT 18

MARRIAGES, PLURAL . 27

MONOGAMY, LORD BOLINGBROKE ON . 21

MORMONS, CAPT. CODMAN ON 12

MORMONS, MEDICAL PROFESSOR ON . . . . . .26

MORMONS, LETTER FROM ONE 26

POLYGAMY, CALCUTTA MISSIONARY CONFERENCE ON . . .24

POLYGAMY AND CONCUBINAGE 19

POLYGAMY, REV. D. O. ALLEN ON 23

POLYGAMY, A BAPTIST MINISTER ON . * . . . . 24
POLYGAMY, LORD BOLINGBROKE ON . . . . .21

POLYGAMY, REV. DR. MADAN ON 16

POLYGAMY, A MORMON ON 26

POLYGAMY, OPINIONS AS TO 64

POLYGAMY, WHETHER A CRIME 17

RESPONSIBILITY, REV. DR. WAYLAND ON . . . . . 33

RIGHTS, HUMAN, NATURE OF 29

RIGHTS, HUMAN, REV. DR. HOPKINS ON 30

RIGHTS, HUMAN, REV. DR WAYLAND ON 30

SUPREME COURT'S OPINION EXAMINED 35

SUPREME COURT'S OPINION, TEXT OF 69

TOLERATION, ROGER WILLIAMS ON 33

TOLERATION, DR. FRANKLIN ON 66

LETTER.

PART I.

To THE HONORABLE HENRY L. DAWES, GEORGE F. HOAR,
WILLIAM W. CRAPO, BENJAMIN W.. HARRIS, AMBROSE
A. RANNEY, LEOPOLD MORSE, SELWYN Z. BOWMAN, EBEN
F. STONE, WILLIAM A. RUSSELL, JOHN W. CANDLER,
WILLIAM W. RICE, AMASA NORCROSS, GEORGE D. ROB-
INSON, Senators and Representatives of Massachusetts.

GENTLEMEN, — To you in the Congress of the United
States, representing Massachusetts, in which State I am a
voter, and therefore one of your constituents, I desire to
express some thoughts on the existing so-called Mormon
problem. I address you in this open letter, rather than in
a private one, hoping thereby to reach, besides your own,
other candid and intelligent minds. Judging from items in
newspapers and somewhat irritating articles in religious jour-
nals, one might at first glance infer that the whole nation
was inflamed, with good reason, against the Mormons. But
closer observation has led me to think that the excitement
is a manufactured one ; kindled and kept alive in the cities
and larger towns, mostly by ministers, priests, and zealous
members of sectarian churches. They denounce polygamy,
a social and religious institution of the Mormons, as a
"crime," an "evil," an "abomination," a "stigma," and use
many other strong epithets and appellatives to express their
detestation of the Latter-Day Saints and their peculiar mar-
riage institution. But I have not yet seen any clear and
candid arguments against the Mormons, or their polygamy,
that justify the censures so profusely and ministerially show-
ered upon them. Epithets, used as weapons of offence, dis-

close, unconsciously to themselves, the real character of those
who utter them. They may be scandalous, leaping like
demons from perturbed and angry passions, or they may be
truthful and angelic in their origin, emitted from wisdom's
sphere. A lavish use of opprobrious appellatives as surely,
and sometimes more deeply injures him who utters them,
than they harm the object to which they are applied. "That
which proceedeth out of the mouth, this defileth the man,"
said the great Teacher of morals and religion, to the Phari-
sees and Scribes of his day. With these reflections there
also comes to my mind the remark of an eminent living
American, that " Ministers, as a rule, know but little of
public affairs, and they always account for the actions of
people they do not agree with, by attributing to them the
lowest and basest motives. This," said he> " is the fault of
the pulpit, always has been, and probably always will be."
Believing that the existing and the prospective hostile legis-
lation against the Mormons is unconstitutional and unjust,
that it is un-American and persecutive, I respectfully and
earnestly implore you representing Massachusetts, where

" Freedom's battle once begun,
Bequeathed by bleeding sire to son,
Though baffled oft, is ever won," —

to heartily help those Mormons now struggling against great
odds, for their own civil and religious liberty ; help them, I
urge, because thereby you help to maintain and defend the
American, the natural, the human right to the free exercise
of religion throughout the United States. Their cause is
that of religious freedom. Whoever hesitates now in the
battle, thereby shows that he does not understand the ques-
tion in issue, or does not appreciate its importance. No
welcome ever awaited the advent of any Christian sect into
the world. Each and every one has been derided, or oppressed
and persecuted, not so much by non-religionists, as by other
sects of professing Christians, chiefly by their priests and
officers. As now of Utah, so of the home of the Founder of

Christianity, it was doubtingly asked, " Can any good thing
come out of Nazareth?" Roman Catholics persecuted Prot-
estants, and the different sects of Protestants have perse-
cuted each other, and attempted to strangle each successive
sect at its birth. Driven by oppression from their native
land to the stern and rock-bound coast of New England, not
even through suffering brought to a perception of toleration
and soul-liberty, the Puritan Congregationalist persecuted
the Quakers and the Baptists. At a later day, as the Univer-
salists, the Shakers, the Methodists, and the Unitarians de-
nominationalized, so each sect received its baptism of abuse,
misrepresentation, or persecution, from the elder members of
the Christian household of faith.

Not thus was it in the better days of certain pagan reli-
gions. The Greeks, besides welcoming many known gods,
inscribed an altar " to the unknown god." The Romans
built the Pantheon, sacred to many gods. Thereby they
manifested not only toleration, but mutual respect for one
another's religious beliefs. Directly contrary to brotherhood,
sadly intolerant has been the Christian religion, as adminis-
tered by its popes, its bishops, its priests, ministers, and
preachers. Dungeons and gibbets, stakes, shackles, and
flames, fines, imprisonments, and proscriptions, stand out
vividly distinct upon its history. Hildreth the historian
says, that " horror of toleration is an inherent and essential

*/ *

characteristic of every theocracy." Theocracy is the oppo-
site of democracy. The author of " The Natural History of
Fanaticism" mentions "enthusiasm inflamed by hatred" as
the cause of this intolerance ; but Rev. Dr. Francis Wayland,
formerly President of Brown University in Providence, R.I.,
in his " Limitations of Human Responsibility," ascribes this
" atrocious wickedness" for so he designates it, to mistake on
the part of the persecutors as to the limits of their personal
responsibility. Are not these intimations from wise and
devout Christians as Dr. Wayland and Rev. Isaac Taylor
were known to be, sufficient to induce the ministers, editors
of religious papers, and other church-members now actively

instigating animosities, pains, and penalties against the Mor-
mons, to consider, to reflect whether the fault may be — not
in the Mormons, but in themselves, that they are persecutors?
Will not you, honored Senators and Representatives of
Massachusetts, consider whether the territory of the United
States, extending from the Atlantic to the Pacific, from the
frigid to the burning zone, may not be vast enough to con-
tain, and the Constitution of the United States wisely inter-
preted (as Thomas Jefferson, James Madison, or Benjamin
Franklin would have interpreted it) broad enough to secure
justice and the blessings of civil and religious liberty not
only for all Christians (the Mormons claim to be Christians),
but for a great multitude which no man can number out of
all tribes, peoples, and tongues, to dwell together in peace,
provided that they do justice, and infringe not on one
another's equal rights?

In considering the Mormon problem, it should be known
that many intelligent and unprejudiced persons who have
visited and dwelt among the Mormons, for the special pur-
pose of observing their social and religious institutions, their
morals, industries, habits, and manner of life, have published
the results of their observations, and their testimony is
before the world. Much evidence might be given, but let
that of one unusually intelligent and truthful witness here
suffice as a fair sample of more that might be given. Capt.
John Codman, widely known in Boston and New York as a
traveller and a man of intelligence, independence, and
integrity, in the small volume entitled " The Mormon Coun-
try," which he published some few years since, thus speaks of
them and their religion : —

11 1 don't believe in their revelations, and God forbid that I should be
understood as attempting to justify polygamy. But for all that, if I
knew that the press, supposing it to notice this little book, would abuse
me unmercifully, and if the ' forty thousand parson power ' of all the
pulpits should come down with its anathemas, I will say this : In all my
voyages and travels about the world I never before passed three months
in a community more industrious, honest in dealing among themselves
and with others, quiet, inoffensive, loyal to government, temperate,

virtuous, and religious, than these Mormons. With all its impositions
and absurdities, a religion which will produce results like these must have
in it of good — something. Yes, a great deal."

Other travellers thither have given like testimony of the
excellent moral habits and condition of the people. It has
been said again and again, that among the Mormons there
are no thefts, no bad debts, no insolvencies ; no gambling,
idleness, nor divorce ; no adultery, seduction, and abandon-
ment; no foeticide, infanticide, nor prostitution. "A good
tree," said the divine Author of Christianity, " cannot bring
forth evil fruit, neither can a corrupt tree bring forth good
fruit." " Therefore by their fruits ye shall know them."
With this rule of Jesus for a criterion, no unprejudiced
person can truthfully deny the goodness of the Mormon
trees, or institutions which annually produce harvests of the
good fruits mentioned by Capt. Codman and other travellers.

But it is said that polygamy is an " iniquity," " a mon-
strous evil," and " a stigma." Chancellor Howard Crosby,
D.D., LL.D., in " The Independent " of March 10, 1881, recom-
mended that "Utah should be dynamited. It is a stench-
heap," said he, "and needs a brimstone cure." Was it a
spirit from beneath, or above, that uttered such invectives,
and animated him in giving such counsels? Jesus turned
and rebuked James and John when they proposed to bid fire
to come down from heaven and consume certain Samaritans,
saying, " Ye know not of what manner of spirit ye are of." l
Having been reared and educated amid evangelic influ-

1 At a recent meeting in New York to protest against Russian persecution
of the Jews, many of whom are polygamists, it is specially interesting to
learn that Rev. Dr. Howard Crosby said, "It was a most marvellous thing
that religious hatred was the most diabolical thing on the face of the earth."
Would that he and his fellow-religionists would be no less tolerant to
Mormons than to the Jews ; and that the Evangelical Alliance of the United
States would remonstrate against the persecution of the Mormons for con-
science' sake, as it has against that of the Jews, and pray the God of Abraham
and Isaac and Jacob (all of whom were polygamists) that he will graciously
so incline the hearts of the President, Senators, and Representatives of the
United States, and all who make, interpret, and execute laws, that they may
be restrained from imposing disabilities and oppressive restrictions upon the
Mormons on account of their religious belief.

ences in New England, I naturally imbibed its religious and
social opinions. I was taught, and believed, that monogamic
marriage was the only Christian and the only proper mar-
riage ; that polygamy was unchristian and barbarous. As I
had not carefully examined into the subject, by thoughtful
study, or by travel and observation of polygamy where it
existed, my opinions in respect to it were, of course, mere
pre-judgments. They were judgments formed before knowl-
edge of it had been acquired. In other words, they were
prejudices. Thus I was prepossessed (as probably a large
part of the American people are from like influences) in
favor of monogamic marriage, and prejudiced against polyga-
my. Not so strong, however, was my prejudice as to call
polygamy "odious;" certainly my taste and my judgment
would have restrained me from designating it as a " stench-
heap." But when, within the last few weeks, the persistent,
universal, and vigorous efforts of ministers, priests, and church-
people, to instigate persecution (which is a cruel and deceit-
ful way of uprooting other religions, and to plant their own)
against the Mormons and polygamy, attracted my attention,
I resolved to rid myself of my pre-judgments or prejudices
as much as possible, and candidly, without bias, to examine
the Mormon question. Cicero saj^s, " Vulgus ex veritate
pauca, ex opinions multa cestimat." I would, if possible,
learn the truth of Mormonism, and not merely reiterate other
persons' opinions about it. " He hears but half who hears
one party only." Accordingly the first part of the Mormon
problem for me to solve, was not, how to abolish polygamy,
but whether polygamy is an "evil," an "abomination," 'a
" stigma," and a " stench-heap," as is charged upon it by
zealous ministers of Christian sects.

Accidentally or providentially, not many months since,
while in the library of Brown University in Providence, R.I.,
I there saw a book entitled, " Thelypthora, or a Treatise on
Female Ruin, in its Consequences, Prevention, and Remedy,
considered on the basis of Divine Law, under the heads of
Marriage, Whoredom, and Fornication, Adultery, Polygamy,

Divorce ; with many other incidental matters, including an
Examination of the Principles and Tendencies of Statute
George II., c. 33, commonly called the Marriage Act," by
Rev. Martin Madan, D.D., published in London, 178CL The
work is in three volumes ; and on the fly-leaf of its second
volume, which had been presented to the library by Judge
E. R. Potter, there was written in his handwriting and over
his signature, as follows : viz., " I wish the subject could be
ventilated anew. Upon these matters the clergy seem to act
like the goose who hid her head in the wall. — E. R. POTTER."

Now, as J not long ago learned from certain ministers who
are quite enthusiastic in the crusade against the Mormons,1
and are equally zealous in their opposition to legislative
divorce except for one cause, that they had never seen
Dr. Madan's book (and they asked me for information
respecting it and its author), it is possible, as the book is
a somewhat scarce one in the United States, that other min-
isters and professional religious guides may not have studied
it, and that your readings of it may not be fresh in your
memories : I desire, therefore, herein to give some extracts
from it, to show some of the opinions and arguments of a
very learned, candid, and courageous minister, — one who
had carefully studied his subject,, and had arrived at con-
clusions different from those hitherto expressed in American
religious journals. Perhaps a consideration of such extracts
may serve to open the door to the ventilation wished for by
Judge Potter.

Dr. Madan was chaplain of Lock Hospital and Asylum, —
an institution founded 1747 by Rev. Thomas Scott, the bibli-
cal commentator, for the cure and reclamation of profligate
persons, — and had, therefore, exceptionally good and large
opportunities of learning from its inmates, the causes of their

1 I have been credibly informed that many ministers in New England
obtain the signatures of their Sunday-school scholars to petitions to Congress
for hostile legislation against the Mormons. T\vo religious newspapers,
edited by ministers, recently refused to me to publish articles asking toleration
for the Mormons, their editors intimating that they felt they could not afford
to.

fall. He was a brother of Rev. Dr. Spencer Madan, Bishop
of Bristol and Peterborough, arid was somewhat short of
sixty years of age when he published his book. As I intend
to give* only, as it were, a clew to his general views and argu-
ments, my extracts from his work must be few, short, and
far-between. He writes : —

" The institution of marriage may be found in Gen. i. 28, ' Be fruit-
ful, and multiply, and replenish the earth,' but the essence of it is in
Gen. ii. 24: l Et ad hcerebit in uxore sua, et erunt in carnem unam.'
Our translation, shall cleave to his wife, does not convey the idea of the
Hebrew original. This is the one simple, divine ordinance, and the obli
gation resulting fiom it is indissoluble. Wherefore, saith Christ, ' what
God hath joined together, let not man put asunder.' The same thing is
expressed in Deut. "xxii. 29, * She shall be his woman,' or wife as we call
it (sa femme, Fr.), because he hath humbled her, he may not put her
away, all his days. . . . (Vol. ii., p. 136.)

"By polygamy I mean the having more than one wife at a time. It
was this which was allowed of God, consequently practised by his people
(Deut. xxii. 29, 19; Exod. xxi. 10)." (Vol. i., p. 75.)

From p. 269 to p. 273 of " Thelypthora," Dr. Madan gives
a paradigm of the passages" of the Old Testament recognizing
and allowing polygamy, arid on p. 273 remarks, " The con-
clusion of all which appears to be, that either we do not
worship the same God which the Jews did, or the God we
worship, does not disallow or disapprove polygamy.

" The true meaning of the word * adultery ' in Exod. xx. 14, — Thou
shall not commit adultery, — is to denote defilement of a betrothed or mar-
ried woman." (Vol. i., p. 61.) "Nor is it used but where a married
woman is concerned." (pp. 281, 383, note 2; vol. ii., 3, 219.)

"So far from Jesus Christ ever condemning polygamy, which, as a
new law-giver, he is supposed to have done, he never mentioned it
during the whole course of his ministry, but left it, as he did all other
moral actions of men, upon the footing of that law under which he was
made, and to which for us men, and for our salvation, he became subject
and obedient unto death." (pp. 287, 288.)

" Josephus says it was the custom of the Jews to live with a plurality
of wives, — the custom of their country, derived from their fathers."
(p. 392.)

"A divorce which declares the nullity of a polygamous marriage is

not only without all foundation from God's word, but is an arraignment
of the wisdom and holiness of God." (Vol. ii., p. 13.)

"Were a missionary to go into those countries where polygamy is
allowed, and open his commission with declaring, that though polygamy
was allowed under the law, yet Christ forbade it under the gospel, he
would go with a lie in his right hand." (Vol ii., p. 81.)

u We may boast of our monogamy, and condemn polygamy: but there
is not a nation under heaven where polygamy is more openly practised
than in this Christian country ; for, though a man can marry but one at
a time, he may have as great a variety of women as he pleases without
ever marrying at all. This is so inveterated by custom, that those laws
of Heaven which were made to prevent it, seem to be totally forgotten."
(Vol. ii.,p. 85.)

' * How polygamy became reprobated in the Christian Church is easily
accounted for, when we consider how early the reprobation of marriage
itself began to appear. The Gnostics condemned marriage in the most
shocking terms, saying it was of the Devil. . . . Better people soon after
condemned marriage as unlawful to Christians, and this under a wild
notion of greater purity and perfection in keeping from all intercourse
with the other sex. This opinion divided itself into many sects, and
gave great trouble to the Church, before it was discountenanced. Still,
second marriages were held infamous, and called no better than lawful
whoredom. Nay, they were not ashamed to write that a man's first wife
being dead, it was adultery, and not marriage, to take another. Amidst
all this, polygamy must necessarily receive the severest anathema."
(Vol. i., p. 275.)

" If women, taken by men already married, were not lawful wives in
God's sight, then the issue must be illegitimate, and it would lead even
to the bastardizing the Messiah himself. It is sufficient to prove one
link in the chain of Christ's genealogy from David, faulty, to defeat all
his title to the appellation of the Son of David, King of Israel. . . . For,
Solomon the ancestor of Joseph, and Nathan the ancestor of Mary,
through whom our Lord's line runs back to David, being the children of
Bathsheba (whom, when David married, he had also other wives by whom
he had children), must fail in their legitimacy." (Vol. ii., p. 15.)

u If God's word be the criterion of right and wrong, our laws have no
more authority to say that a man shall not have two wives, than Popish
laws have to say that a priest shall not have one." (Vol. ii., p. 69.)

" Our notions relative to the commerce of the sexes are by far more
friendly to polygamy, than the Turkish system of polygamy is. A Turk
may take one or more wives, but then they are kept in his harem as his
inviolable property; no eye of a stranger can ever behold them; and they
are maintained and provided for as liberally as the man's circumstances
will permit. Whereas, among us, a man may take as many women as he

can seduce, and abandon them whenever he pleases; they can claim no
property in him, nor he in them; he turns them out upon the common
either to starve with hunger, or rot by prostitution. Had we, at the
Reformation, adopted the law from Mount Sinai, instead of that from
the Council of Trent, relative to marriage, such things could not exist."
(Vol. ii.,p. 84.)

" When we reflect on the superstition with regard to marriage, which
has so long reigned in the Christian Church, and is so much interwoven
with our laws, we may fear that it can never be destroyed without de-
stroying the whole fabric of the laws that support it." (Vol. ii., p. 102.)

" By superstition, I mean a devotion which has no foundation in the
revealed will of God, and either rests in the imagination of the party, or
owes its sanction to some misinterpretation or ill-understanding of the
revelation itself." (Vol. ii., p. 100.)

"It is a superstition which condemns polygamy, and persuades men
to believe that our Saviour called it adultery." (Vol. ii., p. 151.)

" The ambition and avarice of the clergy in the Middle Ages laid the
rest of the world under contribution in the business of marriage, made it
into a sacrament, obscured the real essence and nature of it, and wrested
it out of the hands of the civil power, as to the outward and public recog-
nition of it, to secure it to themselves : after which a man and woman
could not marry but for the emolument of the Church. A newly married
couple were not suffered to live together for a given time, unless they
paid the church for a dispensation. A man was not allowed Christian
burial unless he bequeathed something to the Church. In short, a man
could neither come into the world, continue in it, nor go out of it, without
being laid under contribution by the clergy." (Alexander's "History
of Women," vol. ii. p. 259; quoted in " Thelypthora," vol. ii., p. 165.)

"Whether superstition appear in the shape of a brazen image of an
old man at Carthage, receiving infants into his arms, and letting them
drop into a pit of fire, or of an old man made of flesh and blood at Rome,
commanding people to renounce the evidence of their outward senses, or
of a primitive father (Jerome) of the Christian Church, declaring against
marriage as unlawful under the gospel, and that all the second marriages
were only a more specious and decorous kind of adultery, or of grave and
learned English statesmen enacting a law to put asunder whom God hath
joined together, or of reverend divines, whether Popish or Protestant,
maintaining that certain moral actions, such as polygamy, which God
had allowed, and in some cases commanded under the law, are sinful
under the gospel, superstition is still the minister of Satan, who is the god
of this world." (Vol. ii., p. 183.)

" The Council of Trent decreed that, if any shall say that matrimony
is not one of the seven sacraments instituted by Christ, and doth not
confer grace, * let him be accursed.1 ' (Vol. ii., p. 238.)

" As churchmen increased in power and wealth, the love of both increased
in every age, and marriage was entirely taken, as it were, out of God's
hands, into the hands of churchmen; the Hebrew scriptures relative to
the commerce of the sexes laid out of the case; and what popes, councils,
synods, and human laws determined to be marriage, was marriage; what
they determined to be whoredom and fornication, was so; what they de-
termined to be bastardy, was bastardy ;^but what God had determined to
be, or not to be, any of these, signified no more than if he had never deter-
mined any thing about, the matter." (Vol. iii., pp. 261, 262.)

" That polygamy and concubinage were both dispensations of God, both
modes of lawful and honorable marriage, is a proposition as clear as the
Hebrew scriptures can make it. That polygamy and concubinary con-
tracts are deemed by the Christians null and void, and stamped with the
infamy of adultery and whoredom, is as certain as that the canons and
decrees of the Church of Rome made them so. The consequences of the
former were the preservation of female chastity, and the prevention of
female ruin. The consequences of the latter have been and still are the
destruction of thousands of both sexes, but more especially of the female,
in this world and the next." (Vol. iii., pp. 278, 279.)

" Dr. Alexander, in his ' History of Women,' vol. ii., p. 236, referring
to Deut. xxii., 28, 29, asks, 'Was it possible to devise a law that more
strongly protected female chastity? ' It certainly was not possible; and
the abolition of this law is equally ruinous to the female sex, and an in-
sult to God, who so graciously consulted their security and protection.
This is best accounted for, by considering that our present system of law,
with respect to the commerce of the sexes, has, in a great measure been
handed down to us from the Church of Rome, — that the churchmen thereof,
informer ages, had the framing and fashioning of matters as they pleased,
— that, as all marriage was forbidden them, they took special care to make
themselves amends by keeping those laws out of sight, which, had they
been retained, must have sadly interrupted their monstrous debaucheries,
as well with regard to virgins as married women, which were often car-
ried to such length as we should scarcely credit, were we not assured of
them by the most authentic records. Had the law of Lev. xx. 10 been
retained, the churchmen could not very safely have defiled other men's
wives ; and, as they could not take any woman for their own, the law of
Exod. xxii. 16, and Deut. xxii. 28, 29, could not possibly be obeyed, there-
fore it was expedient for them to leave them out of their system. They
now, from long disuse, have sunk into oblivion; and perhaps there are
thousands of those who call themselves Christians, who do not recollect
that there are such laws as these in the Bible. . . . Well might our blessed
Lord say, * that which is highly esteemed among men is an abomination
in the sight of God.' " (Vol. ii., pp. 31-33.)

" After all the rout that has been made about polygamy and concubinage

in the Christian Church, the only real and substantial difference between
the ancient Jews and Christians is this: The former took a plurality of
women whom they maintained, protected, and provided for, agreeably to
God's word; the latter take a plurality of women, and turn them out
to ruin and destruction, not only against God's word, but against every
principle of justice and humanity. Or, in other words, the Jew took as
many as he could maintain; the Christian ruins as many as he can de-
bauch." (Vol. iii., p. 279.)

" The grand question to be tried is, whether a system filled with obli-
gation and responsibility of MEN to WOMEN, and WOMEN to MEN, even unto
death itself, and that established by INFINITE WISDOM, is not better cal-
culated to prevent the ruin of the female sex, with all its horrid conse-
quences, both to the public and individuals, than a system of human con-
trivance, where neither obligation nor responsibility, either of MEN to WOMEN
or of WOMEN to MEN, in instances of the most important concern to BOTH,
but more especially to the weaker sex." (Vol. ii., p. 1.)

" To vindicate the lawfulness of polygamy, is, as the world is now
constituted, to act as a good citizen of the world, by vindicating the
natural privileges and necessary rights of mankind ; and it is at the
same time to act as a sincere believer in Divine Revelation, to set forth
openly and without disguise that heavenly system by which those rights
are established and secured. To vindicate also that universal law, which
had the good of the WHOLE for its object ; to show that its wisdom and
beneficence are too vast to be confined to a single people, or a single
period of particular dispensation ; to free it from the obscurities which
monks and priests and other enthusiasts and fanatics have involved it in,
to the distress and destruction of millions, — is a task reserved alone for
those who, for the sake of truth,- are willing to sacrifice their ease and
reputation, to the malevolence of ignorance and prejudice." (Vol. i., p.
296.)

u I have written * Thelypthora 'pro bono publico, for the public good, to
check the overflowing of adultery and prostitution, to establish the means
of doing this, on the basis of divine law, to set forth that law as revealed
in the Bible, to contend for its wisdom, holiness, purity and justice."
(Vol. iii., p. 399.)

" In 1530, June 10, the College of Bologna determined that the mar-
riage law in the book of Leviticus, being a part of the law of nations,
as well as the law of Moses and of God, is binding on the whole Christian
Church as well as infidels, and therefore gave their decision against the
legality of Henry's marriage with Catherine of Aragon." (MUNSELL'S
Every-day Book of History and Chronology, p. 220.)

If the subject of marriage in its monogamic and polygamic
forms is to be ventilated anew, as Judge Potter desired it

might be, and as the religious persecution now commenced
against the Mormons makes necessary that it should be,
other views on the same subject than those of clergymen
alone, ought to be known : I will therefore here transcribe
some of the sentiments of Lord Bolingbroke, that eminent
statesman and philosophical essayist of the seventeenth
century, to whom Pope addressed his " Essay on Man," -

" Awake, my St. John ! leave all meaner things
To low ambition and the pride of kings.'*

" Polygamy has always prevailed, and still prevails generally, if not
universally, as a reasonable indulgence to mankind. . . . Polygamy
was allowed by the Mosaical law, and was authorized by God himself.
. . . The prohibition of polygamy is not only a prohibition of what
Nature permits in the fullest manner, but of what she requires for the
reparation of states exhausted by wars, by plagues, and other calamities.
The prohibition is absurd, and the imposition [of monogamy] arbitrary."
(V. BOLINGBROKE'S Works, pp. 160-163.)

"The imposition [of monogamy] is very ancient, — as ancient in
Greece as Cecrops; and if it was the most perfect state [of marriage, as
many assert] there is reason for wonder how the most perfect kind
came to be established by an uninspired law-giver among the nations,
whilst the least perfect kind [polygamy] had been established by Moses,
the messenger and prophet of God, among his chosen people." (pp. 163,
164.)

" The Athenians decreed, after their city had been depopulated by war
and sickness, that every citizen might have, to increase the number of
children, a second wife. . . . Socrates took advantage of this decree,
which set aside the law of Cecrops ; and he despised with a great elevation
of mind those who criticised his conduct, and threw reproaches against
him. This famous missionary of natural religion and law declared by
this action, that polygamy was against neither, and that the law of
Cecrops had forbid what they allowed." (p. 165, quoted from DIOGENES
LAERTIUS, Vita Socrates.)

" The reasons that determined the law-givers of Greece and Rome and
some few other states, to forbid a plurality of wives, which was per-
mitted in almost all countries, may have been such as these: Polygamy
would create large families ; and large families, a greater expense than
could be borne by men who were reduced to live in cities. Monogamy
was a sort of sumptuary law, because men were not permitted to marry
more women than they were able to maintain. Another reason, DIONY-
sius HALICARNASSUS (Lib. ii. 24, 25 6) speaks with great encomium of

a law that Romulus made, by an entire participation of all his possessions
and of his religious rites. These sacred nuptials were celebrated by a
solemn sacrifice, and the eating together of a consecrated barley-cake.
The effect of the law and of this religious ceremony was such, that
during five hundred and twenty years there was no instance of a divorce
at Rome ; not that there was any prohibition of divorce, as some have
imagined. Thus, by the intervention of the priesthood, monogamy
became a religious, as well as a civil, institution." (pp. 166, 167.)

"But of all the reasons which may account for the prevalence of
monogamic marriages, divorces constitute the principal and most effec-
tual. With them, monogamy may be thought a reasonable institution ;
without them, it is an absurd, unnatural, and cruel institution. It
crosses the intention of nature doubly, as it stands in opposition to the
most effectual means of multiplying the human species, and as it forbids
the sole expedient by which this evil can be lessened in any degree, and
the intention of nature can be in many cases at all carried on." (pp.
167, 168.)

Prepossessions are preconceived opinions favorable to any
special matter under consideration. An opinion is not
knowledge, but is a thought between knowledge and igno-
rance. Prepossessions in respect to monogamic marriage,
are thoughts in favor of it, acquired previously to knowledge
or examination of it. Prejudices are judgments against
whatever matter may be under consideration, formed prior
to any certain knowledge, or examination of that matter.
Prejudices in respect to polygamy, are unfavorable opinions
towards it, entertained without actual knowledge or exam-
ination of it. As one's ignorance of a matter is dispelled
before the light of knowledge shed upon it, his enmity sub-
sides, and candor takes its place.

" The seas are quiet when the winds give o'er:
So calm are we when passions are no more."

We read that Saul, an intense religionist and conservator of
the ancient faith, breathed out threatening and slaughter
against the disciples of the Lord, and, being exceedingly
mad, persecuted them even unto foreign cities. But, receiv-
ing more light on the matter, his prejudices subsided, and he
became one of their warmest friends.

So in respect to polygamic marriages. It has sometimes

so happened that very intelligent religious men, yes, Con-
gregationalists and Baptist ministers, brought up with all
the prejudices of Americans and the bluest bigotry of New
Englanders against polygamy, upon becoming better ac-^
quainted with it in lands where it exists, and among people
who practise it, have discovered excellences and advantages
in it, that they had never previously surmised, and for the
information of their fellow-countrymen, they have not been
afraid to say so. Honor to such men for their candor and
courage, and to all fearless advocates of any truth, popular
or unpopular, under heaven ! Rev. David O. Allen, mission-
ary of the American Board of Missions for twenty-five years
in India, in his book entitled " India, Ancient and Modern,'1
published in Boston, 1856, thus speaks of polygamy: —

" There has been a disposition in this country [i. e., United States] to
judge of polygamy as it exists among Jews, Mohammedans, and Hindoos,
with great severity. Now, if polygamy was not morally wrong, if the
custom even had the Divine approbation, among the Jews of old, ... it
is not intrinsically and morally wrong as it exists among the Jews, Mo-
hammedans, and Hindoos; and, if not wrong among them, then the con-
tinuance of the relation after they become Christians cannot be morally
wrong." (p. 604.)

" Some persons in this country [United States] appear to be of
the opinion that polygamy, being contrary to the Christian dispensation,
and contrary, as they think, to the well-being of families, must be
classed, wherever found, with theft, adultery, murder, etc. ; and that
people in any country who have entered into this state, must have as
clearly seen and known that they were doing wrong, as if they had been
violating any of the Ten Commandments. But such were not the views
of pious Jews in ancient time : nor are such the views of Jews in modern
times, when they can live in countries where they can follow their own
usages and laws. Indeed, so far from viewing polygamy as morally
wrong, they not unfrequently take a second and a third wife with much
reluctance, and from a painful sense of duty, to perpetuate their name,
their family, and their inheritance. . . . Now, what shall be done to
such persons when they give credible evidence of personal piety, and seek
admission into the Christian Church ? . . . My opinion is, that the
general practice in missions in such cases will be as follows ... he
will be permitted to retain his marital connection with all his wives;
whether he may or may not cohabit with his different wives, will be left,
I believe, entirely to him and to them according to their views of duty."
(pp. 553, 554.)

The Calcutta Missionary Conference, consisting of mission-
aries of the different societies, which probably included all
denominations except Roman Catholic, . . . were unanimous
in the following opinions : —

"1. It is in accordance with the spirit of the Bible, and the practice
of the Protestant Church, to consider the STATE as the proper fountain of
legislation in all civil questions affecting marriage and divorce."

"2. The Bible, being the true standard of morals, ought to be con-
sulted in every thing which it contains on the subjects of marriage and
divorce, and nothing determined contrary to its general principles."

" 3. Heathen and Mohammedan marriages and divorces, recognized by
the laws of the country, are to be held valid."

" 5. If a convert, becoming a Christian, has married more wives than
one . . . he shall be permitted to keep them all. " (pp. 601, 602.)

" Polygamy is practised in India among the Hindoos, the Mohamme-
dans, the Zoroastrians, and the Jews. It is allowed and recognized by
the Institutes of Menu, by the Koran, by the Zenda Vesta, and, the Jews
believe, by their Scriptures, the Old Testament. It is recognized in all
the courts of India, native and English. The laws of the British Parlia-
ment recognize polygamy among all these classes, where the marriage
connection has been formed according to the principles of their religion,
and to their established laws and usages. The marriage of a Hindoo or a
Mohammedan with his second or third wife is just as valid, and as legally
binding, as his marriage with his first wife, just as valid as any Christian's
in the Church of England " (p. 551.)

In 1869 "The History and Philosophy of Marriage, or Po-
lygamy and Monogamy compared by a Christian Philanthro-
pist," was published in Boston, and another edition in the
year 1875. The author of it — he is a Baptist minister — says
that he is a native of New England, was brought up a strict
Puritan, graduated from college expecting to become a mis-
sionary ; but his health broke down, and he went to India in
the employ of a Boston house there, having an extensive busi-
ness. In India he lived many years ; and since then, " having
seen all the continents of the globe, and many islands of the
sea, and having observed human society in every climate and
in every social condition, I have returned," he says, " to my
native land, an older and I hope a wiser man." (p. 16.) He
says he has investigated the whole subject of marriage for

many years, including monogamy and polygamy, and has
" become convinced that polygamy is not always an immo-
rality ; that if the prejudices of modern Christians are op-
posed to the social system which their ancient brethren, the
earliest saints and patriarchs, practised in the good old days
of Bible truth and pastoral simplicity," he believes " that
these prejudices are neither natural nor inveterate, but that
they have been induced by the corrupted Christianity of the
mediaeval priesthood, and that they will be removed when
Christian people become better informed ; and if it be neces-
sary for me," he says, " to sacrifice my own ease and my own
credit in attempting to remove them, I shall only suffer the
common lot of all reformers before me. . . . Truth dreads
no scrutiny, shields herself behind no breastwork of estab-
lished custom or of respectable authority, but proudly stands
upon her own merits. I will not despair," he continues,
" therefore, of gaining the attention of every lover of truth,
while I attempt to develop and demonstrate the laws of God
and of Nature upon the important subjects of love and mar-
riage, and to apply those laws to the two systems of monog-
amy and polygamy." (pp. 23-25.) As the book is in the
market, this letter need not contain more extracts from it.

Truth is mental light. Ignorance is mental darkness.
John Robinson told the Pilgrim Fathers, upon their depart-
ure from Holland, that he was very confident that the Lord
had more truth yet to break forth out of his Holy Word.
Into the open minds of honest, unprejudiced persons, more
truth from every object in nature, and from every human
institution, is gradually received.

Within a few days two letters, each incidentally touching
the Mormon question, have come unsolicited and unexpect-
edly to me. The extracts from them which I here introduce
are published without the knowledge of their authors. But
though I think that the pertinency and value of their remarks
justify this use of them, I do not feel at liberty to mention
the names of the writers. One is a professor of medicine,
and author of philosophical and historical books of repute, in
a large city. Thus he writes : —

** So far as I speak, it shall be for freedom I detest oppression every-
where. I want mankind pure and happy. This can never be, so long as
some exercise dominion over the lives and hearts of others. Even now
France is freer than America, and Russia is taking larger strides towards
popular rights. . . . Whatever we may think of polygamy, it is the
world's practice. Europe has it at this day in her morganatic marriages,
and her rich men's mistresses. Martin Luther sanctioned it by distinct
approval. Roman popes have given dispensations for it. The Bible, in
neither Testament, whispers a disapproval, even by torture.

"So long as women outnumber the men,1 and yet have the same
rights and necessities in single as in married life, if they are desirous to
accept the place of second wife in preference to personal isolation, they
are the sole rightful judges in the matter.

" Every monogamous country is a land of harlots. Poverty as well as
passion compel it. It is ill, I know, to be a less-loved wife; but it is a
condition of life. In every family, certain children are less loved. In
our cities, one-seventh of the women live by prostitution. I do not see
any harm to let them have specific relations with the men who associate
with them, as offset against the present sexual vagrancy.

"In the Buchanan administration, the Mormons offered, for the sake
of peace, to remove to New Guinea, if the United States Government
would convey them. But * strict construction ' prevented, and a policy
was adopted to make them and others exasperated all the time, but
nothing effected. It is an issue between brothels and bigamy."

The other letter is from a Mormon. Such a person having
knowledge, is better qualified than one not a Mormon (other
things being equal) to express an opinion of the benefits or
disadvantages of their system. He writes : —

1 In the State of Massachusetts there are about one hundred thousand
more females than there are males. If every man in the State had a wife,
there would remain thousands of women without husbands. The desire for
maternity is natural, on the part of most, if not of all women of nubile age and
normal development. " Give me children, or I die," was the despairing cry of
Rachel to her husband Jacob (Gen. xxx. 1). Every one of these thousands
of unmarried females is entitled, under the Constitution of the State, to the
enjoyment of her natural right to motherhood. Yet the statutes of the State
enact imprisonment or fine to such ones as avail themselves of their natural
right to motherhood without the intervention of an husband of their own. In
such cases, the judicial upholders of those statutes, and the officials who
enforce them, are, in my opinion, morally and essentially more criminal than
are their victims. " The Scribes and Pharisees sit on Moses' seat . . . they
bind heavy burdens, and grievous to be borne, and lay them on men's shoul-
ders "( Matt, xxxiii. 2, 4). " Woe unto you lawyers also! for ye lade men with
burdens grievous to be borne " (Luke xi. 46).

' 4 Permit me to say a few words here respecting the attitude of myself
and my co-religionists upon the Mormon question. Had sensualism been
the object of our system of plural marriage, we could have gratified that
in a much cheaper and popular way than by marrying women, and taking
upon us the care and responsibility of families; and, under tne attacks
and pressure to which we have been subjected, we could easily (had that
been the prompting motive) have seized these attacks as a sufficient ex-
cuse for turning off these wives and children, and relieving ourselves from
much that is now heaped upon us. But I am proud of the loyalty and
high sense of honor of the men. No member of the church has taken
the first step towards relieving himself of this obligation which he and
his wife entered into as solemnly binding upon them both. They may
be imprisoned and killed; but that many at least are prepared for. We
sincerely believe that the Almighty has commanded this system for the
redemption of the race. The prevalent system of marriage is a failure.
Under it both men and women feel themselves forced to commit acts
which the laws make crimes. Woman, being the weaker, is the great
sufferer. Thousands upon thousands of them are crushed under the
weight of what is callecl a splendid civilization. Lecky, an opponent of
plural marriage, describes in his * European Morals ' at what sacrifices the
purity of the monogamic family circle is preserved. A reform is demanded.
No reform in such a system can be effected without sacrifices; even blood
has been shed to accomplish less than this. Not that we believe plural
marriage should become universal. There are many who are unfit to have
one wife; besides the equality of numbers between the sexes is not in favor
of plural marriage being general. But we desire to make sexual crime
impossible, or as nearly so as possible. If men desire women, let them
bear all the consequences, — marry them, and support the offspring. Let
them observe the physiological laws, which even the brutes observe, and
have no commerce during gestation. Then we shall have a race with bet-
ter control of their passions ; and not, as now, too frequently born with
unbridled lusts engendered, while in a pre-natal state, by the excesses of
their parents. Every woman has the right, though frequently deprived
of it by law, to be a wife and a mother. In the large Atlantic cities, of
the morals of which I hear much but know little, I doubt not there are
hundreds of women who would only be too glad to be recognized publicly
as legitimate wives, if it were not unpopular, rather than to be secret
mistresses."

Thoughtful and good men of every country, through all
ages, have cogitated profoundly, and differed widely, on
religion, social order, and society, and on each and every one
of the principles that enter into these matters. Some such

thinkers and their writings have comforted religiously, and
strengthened mentally, certain minds which in those writings
have found relishing spiritual aliment. To such ones the
writings *and their authors have been a savor from life unto
life. But it is also grievously true, that to multitudes of
other persons, everywhere, and through all time, they have
been a savor from death unto death. Theologic differences
and persecutions have wrought woes unnumbered unto innu-
merable myriads of honest men, women, and children. What
terrible spectres of cruelty appear in one's mind at the men-
tion of the Inquisition, or of Smithfield where martyrs were
burned, or of Salem where witches were hung ; or of odium
theologicum (theological hatred), a hatred by theologians and
ministers of one sect towards those of another, that surpasses
all other rancor under heaven, possibly equalled by that of
devils damned in hell. It is shocking to many lovers of
peace, truth, justice, and freedom, that in the nineteenth
century, and in the United States of America, prosecutions,
imprisonments, and fines are to be inflicted, in the name of
law and order, and under the supposed sanction of religion,
upon thousands of good men and women acknowledged to be
honest, upright, industrious citizens in all their ways of life
and labor. Cannot this portentous mockery, sure to be re-
garded by posterity as the crowning disgrace of the existing
religion and civilization of our country, be dispelled ? Scru-
tinize the principles that are supposed to justify such sever-
ity. Compare them with the eternal standards of truth and
justice. It is true that some of the religious practices of the
Mormons do offend the opinions and prejudices of other social
circles and religious sects. Polygamic marriage, which among
the Mormons is a civil and religious institution, as circum-
cision is with the Jews, is distasteful to many good and wor-
thy people in certain other parts of the United States. But
it is said that it is more than distasteful ; it is insisted that
polygamy violates a law, a statute of the United States, and
is therefore a " crime." Ministers, editors of religious papers,
often make this charge, and have thereby inflamed the feel-

ings of their audiences against the Mormons. This charge
ought to be sifted.

Is every violation of a Congressional or State statute a
crime, and is every such violator a criminal ? Were the men
who came forth unharmed from Nebuchadnezzar's burning
fiery furnace, criminals, because they violated his decree?
Was Daniel a criminal in not obeying an established statute
of King Darius ? It was charged against Socrates, that he
corrupted the youth ; against Jesus, that he blasphemed.
The charges being proved to the satisfaction of their judges,
both of these teachers and exemplars of morality and religion
died the deaths of criminals. Was Roger Williams a crimi-
nal in maintaining, as he did, " that any thing short of un-
limited toleration for all religious systems was detestable
persecution " ? For it he was banished : an act that disgraced
Massachusetts, and honored Rhode Island, into whose terri-
tory he was welcomed. Were the founders of our Republic
criminals, or patriots, in resisting and violating as they did
certain laws of the English Parliament? Are the Mormons
to be adjudged criminals if they do not obey Sect. 5,352 of
the Revised Statutes of the United States, which statute
makes every married person who marries another in a Ter-
ritory or other place over which the United States have
jurisdiction, guilty of bigamy and punishable by fine and
imprisonment? All these questions can be clearly answered.
A distinct conception of the nature of " human rights " and
of human crimes answers the question, and solves the Mormon
problem.

First, What is the nature of human rights ? I conceive it
to be a power, a capacity in human beings, of acquiring or
receiving sensations, emotions, mental and spiritual influ-
ences. This power or capacity is born in human beings, not
derived from church or state, is a part of their nature, and
hence is natural. Exercised in their normal direction, these
powers and capacities are rights, because they are in the lines,
the right lines, or direction of nature. Hence the normal
exercise of human powers or capacities, in acquiring or re-

ceiving sensations, emotions, mental, spiritual, and perhaps
other influences, constitute natural human rights. It is not
right for any legislature to abridge them, except so far as it
may be necessary to prevent their possessor from infringing
on the corresponding equal rights of other persons. An act
of a sovereign, or of a legislature to curtail natural human
rights, except for that purpose, is itself a crime, and its pro-
moters are criminals. Hence, Nebuchadnezzar, King Darius,
the judges of Socrates and of Jesus, the colonial authorities
of Massachusetts, and the English ministries, were criminals,
not their victims.

An ancient moralist said 1 that it was " philosophy which
taught the rights of man, which are the basis of human
society." Rev. Dr. Mark Hopkins inquires2 '"whether rights
are not among the most underlying general and powerful of
our principles of action ? What will a man fight for, sooner
than for his rights ? What but his rights ought he to fight
for? Our conception of these comes in connection with
every active principle.

" Among the first, if not the very first, of our moral ideas
is that of a right to ourselves ; that is, of a right to use
every power we have for its appropriate ends ; and, when
that right is interfered with, our nature is stirred to its lowest
depths." Rev. Dr. Francis Wayland says,3 " By the consti-
tution under which the Creator has placed us, the rights of
man are as truly rights, as the rights of God. The violation
of the rights of man, is as truly a violation of right as the
violation of the rights of God." Hence the special — per-
haps the exclusive — province of human legislation is to
ascertain and to protect the natural rights of men, women,
and children. To infringe upon, much more by legislation
practically to make useless, those rights, except to protect the
same rights of other persons from invasion, is a crime fraught
with unnumbered and direful woes to the State that permits

1 Cicero's Tusculuin Questions.

2 On Peace of Conscience. Boston Monday Lecture 1880-81, p. 103.
a Limitations of Human Responsibility, p. 66.

or acquiesces in such legislation. A subsequent part of this
letter will show that to establish human rights, to protect
people in their possession of them, and in the enjoyment of
the blessings of liberty, was the prime object constantly held
in view by the frarners of the Constitution of the United
States.

Human crimes are violations, by one or more human beings,
of the natural rights in person or property, of another, or
other human beings. They are injuries, wrongs, hurts,
harms, troubles, vexations, or annoyance, inflicted, yes, per-
petrated (often with a supposed good purpose in view), by
one or more individuals upon another person. It is impor-
tant to notice that it is the violation by one party of another
party's rights that constitute a "crime." The hurts and
harms that a person inflicts on himself are not " crimes; " they
may be accidents or vices, but are not " crimes." Intoxica-
tion is not a crime : it is a vice. It lacks the essential ele-
ment which constitutes crime : that element is an intentional
violation of another person s rights, without sufficient reason
for such violation. To protect natural rights, to guard them
from invasion, is the only rightful plea for controlling another
person's rights of person, property, or liberty. Legislators
can rightfully enact laws against crimes, but not against
vices. Legislation against crimes, proceeds on the principle
of self-protection, which is a law of nature ; for it is instinc-
tive for a person to attempt to defend himself against injury.
Kindness, arguments, and persuasions, not punitive methods,
are the only ones that can be rightfully used to reform vicious
persons. Their rights of protection against injustice and
violence, are just as sacred to them, as are the rights of virtu-
ous men against injustice and violence to them. An invasion
of one's right of self-protection, is just as truly a crime when
perpetrated against a vicious man, as when it is committed
against a virtuous man. In truth, it is by so much a greater
crime when done by a legislature or a congress than when
done by an individual, as there is more power in such bodies
to execute their purposes, than there is in an individual.

The plural marriages of the Mormons, if there be no force
nor fraud used in effecting or maintaining them, do not violate
the rights in person or property of other people, or of any
person : they are not overt or " open acts against peace and
good order." They are not in opposition to his social duties ;
but are, on the contrary, in the performance of what the par-
ties to them most religiously believe to be their social duties.
A marriage is a civil contract between a man and a woman
for social purposes. The parties thereto have each one a
natural right to enter into such contract, if thereby they
violate no other person's rights. In the case of a proposed
second marriage of the same man and another woman, no
person, so far as I can see, can reasonably object to it, unless
it be the first wife. If she do not object, much more if she
favor the proposed second marriage, I do not see any reason-
able objection to it. It may not be to my taste, nor to your
taste : but we are not parties to it ; our tastes ought not to
control other independent persons' marriage preferences. It
certainly is against our prejudices. But prejudices are subtle
enemies. They enslave and dwarf every person who enter-
tains them. As I have said, the parties to a proposed second
marriage have a natural right to enter into such contract,
if thereby they violate no other person's rights. No other
person, or legislature is rightfully entitled to oppose, or remon-
strate against it, otherwise than by moral means. Force or
fraud authorized or employed against any of the married
parties, is itself a crime. Legislators who authorize it are, in
my opinion, greater criminals, than are the ignorant, poverty-
stricken, or money-making officials who execute their statutes.

In my younger days I was a Baptist ; for twenty-five years
was a member of a Baptist church. Some of the 'principles
of the Baptists are especially dear to me. Sorry am I, that
in the existing mad uproar against the Latter-Day Saints,
(for so the Mormons call themselves) certain Baptist minis-
ters and editors have not learned, or perhaps have forgotten,
the principle of " unlimited toleration for all religious sys-
tems," promulged by Roger Williams and President Way

land, — bright and shining lights that they were, of that
denomination. Roger Williams wrote,1 —

" There goes many a ship to sea, with many hundred souls in one
ship, whose weal and woe is common, and is a true picture of a common-
wealth, or a human combination, or society. It hath fallen out some-
times, that both Papists and Protestants, Jews and Turks, may be
embarked in one ship ; upon which supposal I affirm that all the liberty
of conscience that ever I pleaded for turns upon these two hinges : that
none of the Papists, Protestants, Jews, or Turks be forced to come to
the ship's prayers, nor compelled from their own particular prayer or
worship. ' '

Let it not be forgotten, nor misapprehended that Mormon
plural marriages are, by the parties to them, revered and
held as sacred a part of their worship, as circumcision is by
the Jews, or immersion or sprinkling is by Baptists and Con-
gregational ists, or as celibacy is by the Shakers and by the
Roman Catholic priesthood. If a ship (in Roger Williams's
day a ship was of only some few hundred tons burden) could
carry hundreds of Papists, Protestants, Jews, and Turks on
a long voyage (the voyage of life to most of us is but a
short one) without internal religious strifes, simply by these
different sects and nationalities mutually abstaining from
persecution of one another, then certainly it is not impossi-
ble in the vast territory of the United States (where each
State is at liberty, without let, hinderance, or other restraint
than moral ones, to establish monogamy, polygamy, or any
other marriage institution that the people of each State may
respectively desire) for Americans of all creeds, modes of
faith, and republican social institutions, to dwell together in
peace, harmony, and prosperity, if they will abstain from per-
secution or violation of one another's natural rights.

" In my Father's house are many mansions." For aught I
know to the contrary, Jesus may have prepared, among those
many mansions, a place for the Mormons.

Dr. Wayland, in the section on "Persecution on account
of Religious Opinions," in his " Limitations of -Human Re-

1 Knowles's Memoir of Roger Williams, p. 279.

sponsibility," states principles for the right regulation of
human conduct, which, applied to the Mormon problem,
will, with peace and justice to all parties, sects, and denomi-
nations, surely and honorably solve it. Those principles are
that we are not responsible for the religious opinions or prac-
tices of our fellow-men, and, whatever be our physical power,
we cannot rightfully use it to the detriment of our neighbor,
to accomplish any good whatever, if he does not infringe
upon our rights. " My brother," he says, " may be in error ;
but he has the same right to propagate his error that I have
to propagate my truth. To use any other weapons against
him than arguments is persecution, and shows a selfish dis-
position to invade the rights of our neighbors. The weapons
of Christian warfare are not carnal, but simply truth and
righteousness.

These principles, unswervingly adhered to, will solve, to
the satisfaction of every person who acts upon them, the
Mormon problem, all temperance, prohibition, and divorce
questions, and other enigmas that sometimes perplex legis-
lators, judges, ministers, and other intelligent and conscien-
tious people.

Proximus ardet Ucalegon. If the Mormon house of wor-
ship be destroyed, whose house will next burn ?

PART II.

CONSTITUTIONAL AEGUMENT.

PLEASE permit me, Gentlemen of Massachusetts, now to
ask your attention to the case of Reynolds vs. United States
(98 United States Reports, Supreme Court), argued and ad-
judged in the Supreme Court, October term, 1878, in which
case Mr. Chief Justice Waite delivered the opinion of the
court.

You know (for some, if not all of you are lawyers) that
certain cases in law books are called leading cases ; perhaps
(I hope it is) because, amid the conflicts of human selfish
interests and prejudices, they allure to brighter worlds, and
lead the way to the eternal principles of truth and justice.
Such was the Sommersett negro case, in which, amid the
prejudices, and social and monetary influences which clouded
it, Lord Mansfield discerned human rights, and secured
freedom to a slave. Coming time may reveal whether the
Reynolds case will be classed among leading cases, or over-
ruled cases, — whether, in the galaxy of luminous, just
decisions, that of Chief Justice Waite's will be, as Lord
Mansfield's was, a guiding star. No other considerations
than love of liberty, truth, and justice, and regard for the
good name and permanent best interests of our country, have
led me to examine the Reynolds case, and address this letter
to you. I find that in it are involved not only Mormon in-
terests, but the American, the human right of all men to the
free exercise of religion. As violations of this right have

not unfrequently kindled animosities and wars, it seems to
me that this case has not, either in the court or elsewhere,
attracted the attention nor received the discussion which its
importance merits. In what I may say, I wish it understood
that I desire to be merely an amicus curice; certainly I am
not a partisan.

In this case the charge was that the plaintiff in error, having
a wife living, married another, and thereby violated Sect. 5,352
of the Revised Statutes of the United States, which statute
makes every married person who marries another in a Terri-
tory or other place over which the United States have ex-
clusive jurisdiction, guilty of bigamy, and punishable by fine
and imprisonment. To this charge it was answered that that
statute is unconstitutional, because it is contrar}^ to, and vio-
lates Article I. of Amendments to the Constitution, which
amendment declares that Congress shall make no law respect-
ing an establishment of religion, or prohibiting the free exer-
cise thereof. The Supreme Court of the United States have
decided that the statute is constitutional and valid ; and it is
popularly supposed that that decision settles the matter
But " let us consider the reason of the case, for nothing is
law that is not reason."

The opinion of the court was delivered by Mr. Chief
Justice Waite. It is one of the excellences of a people's
government, that the acts of its legislators and the decisions
of its judges, are open to the examination and criticism of
every citizen. Of this privilege, or rather blessing of liberty,
resulting from the constitutional right of freedom of speech
and press, I wish to avail myself, and shall therefore here
examine and comment on certain parts of that opinion.

Most gratifying to every lover of civil and religious liberty
is its declaration that " Congress cannot pass a law for the
government of the Territories, which shall prohibit the free
exercise of religion. The first amendmf it to the Constitu-
tion expressly forbids such legislation. Religious freedom is
guaranteed everywhere throughout the United States, so far
as Congressional interference is concerned. The question

to be determined," says the court, " is whether the law now
under consideration [i.e., Sect. 5,352] " comes within this
prohibition."

" The word 4 religion,' " the court continues, " is not defined
in the Constitution. We must go elsewhere, therefore, to
ascertain its meaning ; and nowhere more appropriately, we
think, than to the history of the times in the midst of which
the provision was adopted. The precise point of the inquiry
is, what is the religious freedom which has been guaran-
teed?" (p. 162.)

The court, after briefly alluding to ancient Virginia con-
troversies arising from taxation for support of particular
sects, etc., refers to a " Memorial and Remonstrance," pre-
pared by Mr. Madison, in which he demonstrated "that reli-
gion, or the duty we owe the ' Creator,' was not within the
cognizance of civil government;" also to an act "for estab-
lishing religious freedom," drawn by Mr. Jefferson : " In
the preamble of this act" [12 Hening, Stat. 84], l the court
says " religious freedom is defined ; " and, after a recital that
" to suffer the civil magistrate to intrude his powers into the
field of opinion, and to restrain the professions or propagation
of principles on supposition of their ill tendency, is a danger-
ous 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 actions against peace and good order."
"In these two sentences," says the Supreme Court, uis found
the true distinction between what properly belongs to the
church and what to the state."

Is " religion " or " religious freedom " to be cabin'd,
cribb'd, confin'd, bound in any verbal definition? Are only
such citizens to be protected from Congressional interfer-
ence with their religious freedom, as believe religion to be
" the duty we owe the Creator " ? Has Congress the consti-
tutional power to prohibit the free exercise of their religion
to citizens who believe, with Thomas Paine, that "the world

1 See act in the Appendix.

is my country, to do good my religion ; " or who believe with
that servant of God and of the Lord Jesus Christ, the epistle-
writer James, that pure and imdefiled religion is to visit the
fatherless and widows in their affliction, and to keep one's self
unspotted from the world; or to other citizens, who do justly,
love mercy, and walk humbly, each one before his own God,
which the prophet Micah declared was good, and the only
thing Jehovah required of man ?

Possibly the word "religion " was not defined in the Con-
stitution, because the word has as many meanings as there
are minds that think upon it. It is too broad, too high, too
profound, too variform, too subtile, too spiritual, to be com-
prehended in any network of words. Definition of religion
is limitation, restriction, circumscription of religion. Defini-
tions of religion therefore, only include states, or establish
certain parts or phases of religion, and thereby exclude other
parts or phases of it. Definition of religion is therefore both
" an establishment of religion " and a " prohibiting the free
exercise thereof," respecting which the Constitution expressly
declares Congress shall make no law. . . . The court, al-
though it says that "religious freedom " is defined in the act
draughted by Mr. Jefferson, does not mention that definition
in its opinion ; and on examination of the act I have not
found it. The reader may examine it, in the Appendix of
this pamphlet.

But here I would inquire, is the meaning of " the word
religion " to be found in " the history of the times in the
midst of which the provision [i.e., first amendment to the
Constitution] was adopted"? The question of the constitu-
tional power of Congress to legislate in respect to marriage,
and the social relations of the people in the Territories of the
United States, was for the first time Brought before the
Supreme Court in this case. What the Jountry expected of
that court, and what it needs at the present time, when sec-
tarian madness rules the hour, and pygmies are perched on
Alps, is a luminous judicial interpretation of the scope,
design, and breadth of " the religious freedom granted by

the Constitution." Such an exposition, based on the eternal
principles of truth, justice, and liberty ; breaking church
shackles from the soul, as the Sommersett negro case broke
the slaveholder's manacles from his body, would have made
it a leading case fit to be published beside that one which
made illustrious Lord Mansfield's name. But the court, still
groping for the meaning of " the word religion," amid his-
toric records, narrates that a little more than a year after the
passage of Jefferson's statute in the Virginia House of Dele-
gates, the Convention met which prepared the Constitution
of the United States, but failed to include in it an express
declaration insuring the freedom of religion. Subsequently,
at the first session of the first Congress, the first amendment
to the Constitution was proposed by Mr. Madison, and
adopted. Mr. Jefferson afterwards, in reply to an address to
him by a committee of the Danbury Baptist Association (8
Jefferson's Works, 113), said, " Believing with you, that
religion is a matter which lies solely between man and his
God ; that he owes account to none other for his faith or his
worship ; that the legislative powers of the Government reach
actions only, and not opinions, — I contemplate with sove-
reign reverence that act of the whole American people which
declared that their legislature should make ' no law respect-
ing an establishment of religion, or prohibiting the free exer-
cise thereof,' thus building a wall of separation between
Church and State. Adhering to this expression of the
supreme will of the nation, in behalf of the rights of con-
science, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore man to all his natural
rights; convinced that he has no natural right in opposition
to his social duties." " Coming as this does," says the Su-
preme Court, "from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative
declaration of the scope and effect of the amendment thus
secured. Congress was deprived of all legislative power over
mere opinion, but was left free to reach actions which were
in violation of social duties or subversive of good order."
(p. 164.)

Thus much of what the court say of the first amendment,
under the light thrown upon it by Messrs. Jefferson and
Madison who originated and proposed it. It was an amend-
ment to the Constitution.

But now, senators and representatives of Massachusetts, it
is chiefly and all-important to bear in mind, and your candid
attention is most earnestly solicited, for the right determina-
tion of the whole case hinges upon it, — that the expressed
and only purpose for which the Constitution was ordained
and established, so far as the special matter (viz., respecting
an establishment of religion, or prohibiting the free exercise
thereof) now under consideration is concerned, was "to
establish justice, and secure the blessings of liberty." This
is the purpose stated in the preamble, that sets forth the
intent of the Constitution. All the seven articles of the
Constitution, with their various sections, are merely means
and modes of carrying into execution the purposes and
objects stated in the preamble, and ought to be interpreted
by, and in accordance with the exact and specific objects and
purposes therein stated. " The aim and object of an instru-
ment is essential in construing it," says Lieber in his " Legal
and Political Hermeneutics " (p. 143). The preamble of the
Constitution was adopted as a solemn promulgation of a fun-
damental fact vital to the character and operations of the gov-
ernment, says Mr. Justice Story in his " Commentaries on
the Constitution " (sect. 463). That preamble as a key
opens the meaning of the First Article of the Amend-
ments.

The aim and object of the Constitution was to secure the
blessings of LIBERTY to each and every person of the United
States then living, and to each and every one of their pos-
terity. The blessings of liberty in every department of human
thought and action, without any restriction of liberty what-
ever, with no possible limitation of that liberty, provided that
it did not work injustice to any other person (for to establish
justice was another object and aim, mentioned in the pream-
ble), were to be secured to each and every one of the people

of the United States, and to each and every one of their pos-
terity. It was to secure the blessings of liberty in politics,
in trade, in action, in speculation, in religion, and in every
other conceivable sphere of mind and matter that human
beings can engage in, with the single limitation of doing in-
justice to no one, that the Constitution was ordained and
established. Its purpose was not merely to secure fragments
of liberty, such as popes, bishops, ministers, kings, and princes
might permit or dole out to the people, that they were to
possess. No! the representatives of the United States in
their Declaration of Independence declared that all men
were created equal, and were endowed with the right, among
other rights, of the pursuit of happiness. Illumined by this
light from the Declaration of Independence, it is clear that
the purpose, object, end, and aim of the Constitution was to
secure to the people of the United States and their posterity,
to each and every one of them individually, all the blessings
of universal liberty in his pursuit of happiness, with no
limitation or restriction whatever, save the single one of not
doing injustice to any one. Constitutionally, therefore, every
American is a free man with liberty to do all that he may
wish to do in his pursuit of his individual and social happi-
ness, provided that he do not injustice to any person. This
liberty declared, and limited by avoidance of injustice to any
one (for " to establish justice " was another purpose men-
tioned in the preamble) coincides in meaning with the first
principle of ethical science stated by Herbert Spencer in his
" Social Statics, or the Conditions essential to Human Happi-
ness " (p. 121) ; viz., that "every man has freedom to do all
that he wills, provided he infringes not the equal freedom of
any other man," a principle which he declares to be " a law
of right social relationships." Constitutional liberty and the
principle of ethical science are but echoes of the whole
doctrine of justice, which Justinian centuries ago thus stated
in his " Institutes " (i. 1,3): Juris prcecepta sunt hcec,
honeste vivere, alter urn non Icedere, suum cuique tribuere.
(To live honestly, to hurt nobody, to render to every one

his due.)1 "Truth is the summit of being," says Emerson.
" Justice is the application of it in affairs." No better policy
can guide any political administration and party in power,
than to do justice to all classes and conditions of men,
especially to the oppressed. The Mormons now suffer from
Sect. 5,352 of the United States Revised Statutes, purposely
enacted to hurt them, which therefore violates the above
second principle of justice.

Now, when the Supreme Court say that Congress "was
left free to reach actions which were in violation of social
duties, or subversive of good order," in my judgment, — and
I desire to speak with proper deference, — it says what the
Constitution has not authorized it to say. A man's social
duties grow out of his capabilities and his natural rights.
His natural rights do not spring from his social duties,
but are inherent in and essential to him as being a man.
He can perform his social duties, only as he has capacities
for their performance, and by being left in the full and
unrestrained possession and enjoyment of all his natural
rights. It may be a man's and a woman's social duty to
attend dancing-parties and prayer-meetings. But whether
it is a duty thus to do, they must decide for themselves. It
is their exclusive right to decide it. Any statute of Congress
compelling such attendance under pains and penalties, or
any court's interpretation of the Constitution, or of such
statute, to the effect that, not attending such dancing-parties
or prayer-meetings, they thereby violated social duties, or
subverted good order, would be an infringement of their
natural rights, and would be an act of despotism on the part
of Congress, or of usurpation on the part of the court mak-
ing such interpretation. Equally despotic would be the
legislative statute, and equally perverting would be the
court's interpretation, which would restrain the man and

1 Spencer's First Principle of Ethical Science, and Justinian's Epitome of
Justice, harmonize well with Confucius's Reciprocity, or Rule of Practice for
all one's life : " What you do not want done to yourself, do not do to others; "
and with the precept, " Whatsoever ye would that men should do unto you
even so do ye also unto them," which Jesus said is the law and the prophets.

woman from attending such dancing-parties or prayer-meet-
ings, provided that by such attendance they did injustice to
no one.

The Constitution does not, either in words or by implica-
tion, allude to " social relations, social obligations and du-
ties." It may be a social duty for me to enlarge my circle
of acquaintances, to reciprocate friendly offices, and to help
on Christian missions, or infidel sciences, as I may prefer ;
but they are not legal duties, required of me by the Consti-
tution. The Congress or the court that assumes to coerce
me in " social relations, social obligations and duties," or to
restrain me in the exercise of them, where I do injustice to
no one, transcends its constitutional powers, and becomes a
despot. The assumption of the court, that the American
Government is necessarily required to deal with the " social
relations and social obligations and duties " of the people, is
a subtle and an enormous absorption of undelegated power,
and is one that should attract the attention of all Americans
interested in preserving free institutions and the " blessings
of liberty"

Not less unconstitutional and indefensible is the Supreme
Court's selection of the words " good order," as a criterion of
the legislative power of Congress over the actions and
natural rights of the people. The words " social deeds " and
"good order" have no exact, precise, and legal meaning.
They are indefinite expressions. Their meanings shift and
vary, and are as many and as diverse as are the sects, parti-
sans, and people that all over the world, use these words.
" Order reigns in Warsaw," was the official proclamation,
when the capital city of the Poles was crushed beneath the
feet of the Russian despot. But it was oppression and
slavery of the Poles, which was interpreted as "order" by
the Czar. By the evidence of the Mormons, and of many
other competent and credible witnesses, "social duties" are
as well performed, and as " good order " exists, among the
Mormons in Utah as in any one of the United States. The
particular kind of " social duties," and the particular kind

of "good order," which Congress seeks to enforce upon and
among the Mormons, is as destructive of their human rights
and of their blessings of liberty, as the ukase of the Czar
was to the rights and liberties of the Poles. " Social duties
and good order " are words not in the Constitution. Its
framers put therein other words, with exact and definite
meaning; those words are "justice" and "liberty." "To
establish justice, and secure the blessings of liberty to ourselves
and our posterity" was the declared purpose, object, end,
and aim of the Constitution. The words " social duties and
good order " are unwarranted, injected interpolations, and
utterly subvert the meaning of that instrument. They open
the door to unlimited arbitrary legislation, and are in direct
conflict with that amendment to the Constitution which
declares "that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof."

Therefore I regard the opinion of the Supreme Court, that
Congress was left free to reach actions which were in viola-
tion of " social duties or subversive of good order " (said
actions being just), as a violation of the fundamental princi-
ples of the Constitution, and a usurpation by which the
court abridges the "blessings of liberty" to the people.

The court proceeds, and says, " Polygamy has always been
odious among the northern and western nations of Europe ;
and, until the establishment of the Mormon church, was
almost exclusively a feature of the life of Asiatic and of
African people. From the earliest history of England
polygamy has been treated as an offence against society.
After the establishment of the ecclesiastical courts, and
until the time of James I., it was punished through the
establishment of those tribunals."

To this I answer, what the court here says may all be
true, and yet it is not a sound argument, warranted by the
Constitution, against the Mormon church or its polygamy.
Not only has polygamy been " odious," but so has democracy
been " odious " among the northern and western nations of

Europe; but that is no good argument why democracy
should not exist in the United States. Whether a matter
or an institution is odious or not odious, is a question of
taste, and not of natural rights. De gustibus non est dispu-
tandum (there is no disputing about tastes), is a maxim appli-
cable as well in legal discussion, as in social conventionalities.
Therefore the opinion of the northern and western nations
of Europe as to the good or bad taste of polygamy, is not
pertinent in ascertaining the Constitutional or " natural
rights " of the Mormons.

Neither because " polygamy has been treated as an offence
against society " in England, and been punished in its
" ecclesiastical courts," does it follow that it should be so
treated in the United States. The political status of society
in England is radically different from the constitutional
status of society in the United States. In England, it has
developed from a monarchical and an aristocratic form of gov-
ernment, and partakes of the characteristics of such govern-
ments, and the English people have only such rights as have
been conceded or granted to them by their government. In
the United States, society springs from democratic sources,
and the people here possess all their natural rights except
such, and so much concession of them to the National Gov-
ernment, as it was necessary for it to possess in order " to
establish justice. " It is confusion of thought on the part of
the court, to confound, as one and the same thing, such
utterly different political states of society, as that of England,
and that of the United States, and to reason, that, because
"from the earliest history of England, polygamy has been
treated as an offence against society,'' therefore in the United
States it should also be treated as an offence against society.

Neither does the fact that English ecclesiastical courts
punished polygamy add weight to the opinion of the court.
The Constitution does not recognize, and knows nothing of,
" ecclesiastical courts." To escape from them, from their
barbarities and absurdities, was one purpose of the early set-
tlers of the colonies, and of the framers of the Constitution.

Therefore ecclesiastical opinions and punishments of English
polygamists, are of no assistance in ascertaining the natural
and constitutional rights of Mormons, and cannot rightfully
be resorted to, as affording any constitutional prohibition of
the free exercise of their religion, or the exercise of their
natural rights. The court continues its argument, and after
reciting that the statute of 1 James I. (c. 11), punishing
polygamy, had been re-enacted in the colonies, after the pas-
sage of the act establishing religious freedom, and after the
Convention of Virginia had recommended as an amendment
to the Constitution of the United States, the declaration in a
bill of rights that "all men have an equal, natural, and
unalienable right to the free exercise of religion according to
the dictates of conscience," mentions as a significant fact that
on the 8th of December, 1788, the legislature of that State
substantially enacted the statute of James I. because, as re-
cited in the preamble, " it hath been doubted whether big-
amy or polygamy be punishable by the laws of this Common-
wealth." "From that day to this," continues the court,
" we think it may safely be said there has never been a time
in any State of the Union when polygamy has not been an
offence against society, cognizable by the civil courts, and
punishable with more or less severity. In the face of all this
evidence, it is impossible to believe that the constitutional
guaranty of religious freedom was intended to prohibit legis-
lation in respect to this most important feature of social life."

The first answer to this reasoning of the Chief Justice that
occurs to me, is the same offered by Mr. Justice Field, for
not concurring with the majority of the court in relation to
the admissibility of certain testimony offered in said case :
viz., " the authorities cited by the Chief Justice, to sustain its
admissibility, seem to me to establish conclusively the exact
reverse."

For, the General Assembly of Virginia which enacted the
act for establishing religious freedom in 1784-85 (12 Hen-
ings, Stat. 84), as if foreboding the possibility of succeeding
assemblies attempting to narrow its operations, in their said

act declared " that the rights hereby asserted " (viz., that of
religious freedom) "are of the natural rights of mankind,
and that if any act shall be hereafter passed to repeal the
present, or to narrow its operations, such act will be an
infringement of natural right."

As State courts sometimes declare statutes which contra-
vene the principles of their State Constitutions, to be void
and of no effect, so I believe that a Supreme Court imbued
with the views of the Virginia Assembly of 1784-85, or of
the liberal-minded patriots that framed the Constitution of
the United States, would have nullified Sect. 5,352 of the
United States Revised Statutes, and any statute of a similar
character, when judicially brought before it; and the case
itself would have been a leading case, because its decision
would have rested, not on selfish, sectarian, and conflicting
opinions, but on the eternal and universally acknowledged
principles of truth and JUSTICE.

II. Please reconsider the several parts " of all this evi-
dence," in whose face the court say, "it is impossible to
believe that the constitutional guaranty of religious freedom
was intended to prohibit legislation in respect to [polyga-
my] this most important feature of social life." These
parts are (1) A declaration in a bill for establishing religious
freedom, passed in the Virginia House of Delegates, 1785,
"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." The
answer to this piece of evidence is, that Mormon polygamy is
not in its nature or manifestation an act against peace and
good order. Mormon polygamists are as orderly and as
peaceable as, perhaps more so than, are celibates or monoga-
mists. An act of Congress declaring polygamy to be a crime
or an overt act against peace and good order, or a court's
interpretation of it as such, appears to me to be, in scriptural
phrase, framing mischief by a law.

(2) The second piece of evidence is a remark in Mr. Jef-
ferson's reply to a committee of the Danbury Baptist Asso-

ciation, that " man has no natural right in opposition to his
social duties." The answer is that Mormons, in entering
into plural marriage, are not opposing, but are performing
what they most sincerely believe to be both a social and a
religious duty.

(3) " Polygamy has always been odious among the north-
ern and western nations of Europe." This argument has
herein already been answered, and, in my opinion, is worth-
less.

(4) " Ecclesiastical courts in England had cognizance of
polygamy, and punished it." The answer is, that ecclesiasti-
cal courts never acquired jurisdiction in this country. Their
action in England, therefore, is of no legal efficacy in deter-
mining whether or not Congress had jurisdiction in respect to
polygamy.

(5) " Local statutes in England and in certain American
colonies cognized and punished it." The answer is, that such
statutes, being local, were not operative beyond the limits of
the localities whose people enacted them, and cannot right-
fully be used to restrict or punish persons in another locality.

(6) That " there never has been a time in any State of the
Union when polygamy has not been an offence against society,
cognizable by the civil courts, and punishable with more or
less severity." The answer is, that the statutes in any State
of the Union punishing polygamy have been local, and are of
no legal efficacy beyond the limits of such State, and cannot
be legally applied to govern the people of another State or
Territory, in their marriage relations ; nor can State statutes
enacted to restrain religious freedom, rightfully be quoted in
opposition to Article I. of Additions to, and Amendments of
the Constitution of the United States, which amendment
declares that " Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof." If Congressional or State statutes can be cited as
authority in opposition to the solemnly ordained fundamental
and established purposes and provisions of the Constitution
of the United States, then these latter are of no legal efficacy.

The above six arguments or pieces of evidence may be
acceptable to a pope, or to a Calvin ; but I cannot think they,
would have been satisfactory to George Washington, Thomas
Jefferson, or to Paine, or to Franklin, or to Abner Kneeland,
or to Theodore Parker, or that they will be conclusive to
multitudes of intelligent living Americans. A rod of six
broken twigs, or a staff of six rotten strands, will not comfort
a traveller when he walks amid doubts and shadows through
a dark valley of decision ; he then may fear great evil.

But the court, perhaps not perfectly satisfied with the
evidence whose hexagonal face made it " impossible for the
court to believe that the constitutional guaranty of religious
freedom was intended to prohibit legislation in respect to
polygamy," attacks the question from another, a political
point of view, and, with re-enforcements, argues that " mar-
riage, while from its very nature a sacred obligation, is never-
theless in most civilized nations a civil contract, and usually
regulated by law." Herein is one assumption and two state-
ments. One is, that marriage is a sacred obligation. Is that
so? It was made a sacrament at the Council of Trent, in
words which Rev. Dr. Madan thus translates : " If any shall
say that matrimony is not one of the seven sacraments insti-
tuted by Christ, and doth not confer grace, let him be ac-
cursed."1

During the conflict in England between Church and State,
from time of Henry VIII. and subsequently, marriage was
treated in the courts only as a civil obligation : or contract.
But ever since then the Church, the religious party and
their sympathizers, in England and the United States, have
endeavored to re-invest it with a sacred character. The re-
mark of the court that it is a " sacred obligation " shows that
their sympathies are with the Church party. The Reformers
treated it as a purely civil obligation or contract. Martin
Luther ("Table Talk," p. 306) said, " Matrimonial questions

1 Equally unjust and maledictive appears to me to be Sect. 5,352 of United
States Revised Statutes, which, in effect, declares: Let every married manor
woman in a Territory who married another be fined not more than five hundred
dollars, or imprisoned not more than five years.

are temporal things pertaining to temporal magistrates. I
advise that ministers interfere not in them." As for myself,
I believe that every real obligation is so far sacred, that it
ought to be honorably and strictly, if not generously per-
formed.

The remark of the court that " marriage is in most civil-
ized countries a civil contract and usually regulated bylaw,"
proceeds upon erroneous assumption that the constitutional
government of the United States is the same in principle as
that of governments " in most civilized nations," whereas it
is their exact opposite. The American idea or principle of
government, is that each and every citizen is possessed of
natural rights, inherent in and born with him ; that he has
liberty to exercise and enjoy all his natural rights in the pur-
suit of his individual or social happiness, without permission
or hinderance from any person or government whatsoever,
provided that he do not thereby do injustice to any one. But
the preamble of the Constitution limits his liberty by declar-
ing another of its proposed objects, viz:, " to establish jus-
tice." Therefore, subject to the limitation of doing no
injustice, every citizen in the Territories is constitutionally
secured in the blessed liberty to do whatever he may please
to do, in order to attain his individual or social happiness.
The blissful, but not an iniquitous freedom, of enjoying all
one's natural rights, is, as I believe, what was intended by
the framers of the Constitution, in the phrase " blessings of
liberty " in its preamble. But the idea or principle of gov-
ernment, " in most civilized nations " (thus phrased by the
court), is the feudal idea that " might makes right." Such
governments have been more or less despotic in their admin-
istration of public affairs, because they are despotisms. Ac-
cordingly the people "in most civilized nations" have enjoyed
only such rights as have been doled out or allowed to them
by their rulers. The idea of natural rights, inherent in, and
belonging to, every man, woman, and child, because he or
she is a man, woman, or child, is the American, not the
feudal principle. The court, not recognizing this momen-

tons, essential, and never-to-be-forgotten difference between
the principle of government "in most civilized nations,"
and the American principle of government, purposely, or
otherwise, but certainly erroneously, takes the feudal princi-
ple as its premise or basis of argument, and thereby arrives
at its despotic and un-American decision. It goes upon the
assumption that the administrative officers of the United
States government, rule or govern the people, as the English
Parliament rules the Irish people ; whereas theoretically and
constitutionally the American administrative officers are the
servants, not the rulers, of the people, and should take espe-
cial care that the rights of the people are not abridged, or in
other words, that the Commonwealth receive no detriment.

Prior to the Reformation, popes, bishops, priests, in their
synods and councils, made decrees, and ordained and estab-
lished marriage laws, to which "most civilized nations" sub-
mitted. As before stated, the Council of Trent decreed that
if any shall say that matrimony is not one of the seven sacra-
ments, instituted by Christ, and doth not confer grace, let him
be accursed. In 1530 the College of Bologne determined that
the Levitical marriage law was binding on infidels as well as
on members of the Christian Church. But Henry VIH.,
being refused divorce by the Pope, divorced himself from
Catherine of Aragon, married Anne Boleyn, and thus opened
the way to the Reformation in England and to the civil liber-
ties now enjoyed by Protestants.

" In most civilized nations " marriage (in some being a
sacrament, and in other nations a civil contract) is " usually
regulated by law," because their rulers in accordance with
the feudal principle made the law, and the people, having no
liberty of choice in the matter, were compelled to submit to
the law. But in each and every one of the United States
marriage has been regulated by the people of the respective
States, because the people in each State make its laws. At
the present time, this very year, it is within the legal and
constitutional power of the people of each and every State of
the Union, to ordain monogamy, polygamy, or either one or

both of these modes of social life, as the legal marriage for
the people of their respective States. Congress has no con-
stitutional power to legislate for or against such action. Any
law that it might enact to punish polygamy in any State
would be usurpation on the part of Congress. It would be a
robbery of the rights of the people, by the servants of the
people. If prompted thereto by so-called religious considera-
tions, such action from such motives would prove that, that
religion preferred robbery to justice ; and, if enforced by legal
process, would also show that it preferred violence, and its
own domination, to peace, equality, arid liberty to the people
to enjoy their natural rights.

The court reasoning from its erroneous assumption that
the constitutional government of the United States is, in its
nature and fundamental principle, identical with the nature
and principles of governments, "in most civilized nations," a
latent and fatal fallacy pervading and poisoning every part
of the court's opinion, says that upon marriage, "society
may be said to be built, and out of its fruits spring social
relations and social obligations and duties with which gov-
ernment is necessarily required to deal." These certainly
are matters with which despotic government, and the govern-
ments of "most civilized nations," have dealt. But, as I
believe, the United States Government, keeping itself and
acting, within the preamble and the purview of the Consti-
tution, has no right to deal with " the social relations and
social obligations and duties " of the people. These are
rights and matters retained by the people, and are not dele-
gated to the United States.1

The Roman Catholic Church, more or less theocratic in its
supposed origin, and compulsive in its methods, has persist-
ently and for ages endeavored to regulate and control mar-
riage, and other social relations, not only among its adher-
ents, but wherever else the wide world over, it could exercise
power. By terrible maledictions and severe, penalties, it
sought to establish monogamic marriage as the only legal

1 IX. and X. Amendments.

and sacred connubial relation, and by like severity it en-
deavored to suppress polygamic marriages. Allusions in the
preceding pages have touched upon its moral results, and
its profits to the Church and its ministers.

But notwithstanding the stupendous efforts during eigh-
teen hundred years of that parent church, and of other
churches, which from it as their source have taken their
exclusive, legal monogamic system, notwithstanding their
united efforts to uproot or suppress polygamic marriages, —
another social system "built" upon polygamic basis has ex-
isted, and now is in Asia, Africa, and certain parts of Europe.
As demonstrated by Rev. Dr. Madan, and other authors
herein cited, both monogamic and polygamic marriages ex-
isted among the Hebrews. It is a fact worthy of special
observation, that the Virgin Mother worshipped by Roman
Catholics, as the mother of God, was a Hebrew maiden and

that He

* ' whose blessed feet

Which fourteen hundred years ago were nailed,
For our advantage, on the bitter cross," —

now worshipped by most Protestants as the Son of God, was
a child of Israel. Both Mary and Jesus were born, grew up,
were educated, and lived their lives, amid society whose
" religious beliefs " and " practices," whose " social relations "
and " social obligations and duties," not simply tolerated, but
were themselves the "fruits " of, the monogamic system and
of the polygamic system of marriage, coeval and co-existing
in their native land. The English Government in India now
deals with the sacred and social relations and social obliga-
tions and duties springing from polygamic marriages as justly
and impartially as with those generated by monogamic mar-
riages.

The next argument of the court in its second assault on
the Mormon problem is in these words : viz., " In fact, accord-
ing as monogamous or polygamous marriages are allowed, do
we find the principles on which the government of the peo-
ple to a greater or less extent rests. . . . Professor Lieber

says polygamy leads to the patriarchal principle, which when
applied to large communities fetters the people in stationary
despotism, while that principle cannot long exist in connec-
tion with monogamy. Chancellor Kent observes that this
remark is equally striking and profound."

Four answers to, or comments on this new argument, ad-
duced by the court, may fairly be made : —

(1) The first is, that the statement is an allegation of what
it declares to be " fact," which in truth is mere assertion. It
is simply the court's opinion on a social question, and not on
a legal question. The opinion of the court on legal questions
is supposed for the time being to settle them. But only
truth and justice can finally settle any question. Moreover,
the Supreme Court has no constitutional power to settle
social questions. Individual members of the court may have
opinions on social questions, and may differ in those opinions
as widely as other good citizens are apt to differ on the same
matters. Their united opinion on any social matter, which
does not involve a legal question, is of no more authority,
and is no more binding on the people of the United States,
than is the united opinion, of an equal number of other intel-
ligent gentlemen. Therefore the opinion of the Supreme
Court on the social effects of polygamy is not pertinent to
the case, and is of no legal authority.

(2) Another answer is furnished by the statement itself of
Professor Lieber, that polygamy cannot long exist in connec-
tion with monogamy. If that be a truth, then let there be
no legislation favoring or discouraging either polygamy or
monogamy; but let polygamy cease to exist, simply and
because (as Professor Lieber and Chancellor Kent perhaps
mean in their remarks) the moral and social influences of
monogamy will necessitate the exit of polygamy. That is the
American, the constitutional, the moral, the Christ-like and
apostolic mode of getting rid of a supposed evil. Compul-
sion is a feudal, a barbarous, a brutal mode, frequently if not
always generating and entailing other and perhaps greater
evils.

(3) Moreover, if Sect. 5,352 of the United States Revised
Statutes, and the decision of the Supreme Court thereon, are
passively and permanently submitted to, as law, by the people
of the United States, that submission of the people will be
evidence that monogamy, no less than polygamy, leads to the
patriarchal principle (monogamous legislators and judges
becoming the patriarchs), and, applied to large communities,
fetters the people in stationary despotism.

(4) The remark of Professor Lieber may have been a true
inference from polygamy as it existed in Asiatic countries
where the government was despotic, and the women were
slaves. But it should be remembered that Sect. 4 of Article
IV. of the Constitution provides that "the United States
shall guarantee to every State in the Union a republican
form of government." This constitutional provision, applied
to Utah, makes any argument, drawn from the social or polit-
ical effects of Asiatic polygamy, inapplicable to Mormon
plural marriage ; and that it is not conclusive, is further
proved by a remark of Lady Duff us Hardy in her recent
book, " Through Cities and Prairie-lands" (p. 123).

" There is a wide difference between the Mohammedan and the Mor-
mon — the two polygamic nations. Whereas the former keep the women
in a state of slavery, idleness, and ignorance, the Mormons give their
women every possible advantage of education, and permit, nay, encour-
age, them to take their part in the world's work, and in the management
of affairs generally. "

The court's next observation is, that "an exceptional col-
ony of polygamists under an exceptional leadership may some-
times exist without appearing to disturb the social condition
of the people who surround it ; but there cannot be a doubt,
that, unless restricted by some form of constitution, it is
within the legitimate scope and power of every civil govern-
ment to determine whether polygamy or monogamy shall be
the law of social life under its dominion."

Manifestly, this exceptional colony of polygamists, here
alluded to by the court, — a community which does not dis-
turb the social condition of the people who surround it, and

whose own social condition, as the preceding evidence of
Capt. Codman and other witnesses proves, is peaceful,
thrifty, and moral, though, in its marriage system, not accord-
ant with the prejudice, or, as Rev. Dr. Madan calls it, the
superstition, of other sects, — is the Mormon people. The
court's concession of the tranquillity of Mormon social order
seems to me (as other authorities in this case cited by the
Chief Justice did to Justice Field) to establish conclusively
the exact reverse of the decision to which the court arrived.
The question is not whether it is within the legitimate scope
of the powers of "every civil government," but whether it
is within the legitimate, that is the constitutional, scope of
the power of the United States Government. Her govern-
ment differs from every other civil government (now or ever,
in all time, ever existing in the wide world over) in being
restricted by a written form of constitution ordained and
established to establish justice, and secure the blessings of lib-
erty to the people of the United States, and the people are
constitutionally under only its dominion. As I have had
occasion hereinbefore to say, so again I insist, the reasoning
of the Court in this discussion throughout, proceeds upon an
erroneous conception of the relative positions of the govern-
ment and of the people. Congress, and the executive and
judicial powers of the United States, constitutionally are not
governors to rule the people, but are simply their servants,
to aid in establishing justice and securing the blessings of
liberty to the people. Athens, Sparta, Rome, Carthage, and
the people of many other states, lost their liberties partly
through their religious superstition, and partly through the
cupidity and lust of power of their officials. Very calam-
itous will it be for lovers of justice and liberty, if the United
States of America be another victim.

Moreover, let it here be remarked, that the only power
over the Territories granted to Congress by the Constitution,
is the power mentioned in Sect. 2 of Article IV. ; viz., " Con-
gress shall have power to dispose of and make all needful
rules and regulations rejecting the territory or oilier property

belonging to the United States." That section gives power
to Congress to dispose of the territory ; that is, to sell it,
give or cede it away, or otherwise dispose of it, treating it
exclusively as property, " and to make needful rules or regu-
lations respecting it," regarding it, however, as property, and
as nothing more than property. That section confers no
power on Congress to make rules or regulations respecting
the people of the Territories. The Constitution left the peo-
ple of the Territories, as it did the people of the States, free
to establish their own system of society, and to develop their
own social relations and obligations and duties. As confirma-
tory of this view, let it be observed that, in the ordinance of
Congress of July 13, 17 87, for the government of the territory
of the United States north-west of the river Ohio, it was de-
clared to be an article of compact between the original States,
and the people and States in said territory, a fundamental
principle to remain forever unalterable, that " no person, de-
meaning himself in a peaceable and orderly manner, should
ever be molested on account of his mode of worship or reli-
gious sentiments." (II. Kent's Com., p. 35, note.)

The Supreme Court next considers " whether those who
make polygamy a part of their religion are excepted from the
operation of the statute." It argues that if they are ex-
cepted, "then those who do not make polygamy a part of
their religious belief may be found guilty, and punished,
while those who do must be acquitted, and go free. This
would be introducing a new element into criminal law. Laws
are made for the government of actions, and, while they can-
not interfere with mere religious belief and opinions, they
may with practices."

This reasoning of the court and the statute itself proceeds
on assumption and premises identical with those of despots
and feudal nobles in their arguments to justify their tyran-
nies and oppressions of their dependants. It does not rest
on, and is not deduced from, the American premise that the
people have natural rights, and alone are the source of all
political power.

A remark of Mr. Jefferson which the court recited, but
did not emphasize, was, that he should see with sincere satis-
faction the progress of those sentiments which tend to restore
man to all his natural rights." The word "restore" here
used, implies that previously, in Mr. Jefferson's opinion, man
had been deprived of all his natural rights. True it was, the
people had been robbed of them by priests, nobles, and the
feudal law, — the prime principle of which law, that might
makes right, the Supreme Court now takes as the ground of
its argument to despoil the Mormons of their religious free-
dom. Good heavens ! What profound disappointment and
blank despair would pervade his democratic soul, were Jeffer-
son to read this opinion of the Supreme Court ! By the
Constitution, the people of the United States and their pos-
terity, each and every individual of them, is to be secured
in the blessing and the liberty of doing whatever he may
please to do, provided that he do not thereby do injustice to
any other person. Constitutionally, therefore, neither " those
who make polygam}^ a part of their religion," nor those who
do not make polygamy a part of their religious belief, " may
be found guilty and punished," provided that by their polyg-
amy they have not done injustice to any other person or
persons. Constitutionally, therefore, " this would " not ube
introducing a new element into criminal law." Constitution-
ally, therefore, " laws can be made for the government of
actions," but only of such "actions " as do injustice to any
person or persons. All other laws of Congress are, therefore",
unwarranted by the Constitution; and they may not consti-
tutionally interfere, either with religious belief, opinions, or
practices, if such beliefs, opinions, or practices do not do
injustice to any person or persons.

The Supreme Court next, on the supposition " that one
believed that human sacrifices were a necessary part of reli-
gious worship," asks, " Would it be seriously contended that
the civil government under which he lived could not interfere
to prevent a sacrifice? Or, if a wife religiously believed it
was her duty to burn herself upon the funeral-pile of her dead

husband, would it be beyond the power of civil government
to prevent her carrying her belief into practice ? "

To these questions, the answers arising from the principles
of the Constitution are as follows : viz,, 1. In the supposed
human sacrifice, if injustice were to be done to the proposed
victim, or if he did not voluntarily consent to the sacrifice,
then in the Territories, the civil government of the United
States could constitutionally interfere to prevent a sacrifice.
2. If a wife of lawful age and of sound and disposing mind
and memory, religiously believed it to be her duty, and de-
sired, to burn herself upon the funeral-pile of her dead hus-
band, and by such act did no injustice to any other person
or persons, then in the Territories it would be beyond the
constitutional power of the United-States Government, to
prevent her carrying her belief into practice.

The court then proceed to argue, that to permit a man to
excuse his practice of plural marriage because of his religious
belief " would be to make the professed doctrines of religious
belief, superior to the law of the land, and, in effect, to per-
mit every citizen to become a law unto himself." To this I
answer that it was exactly this consequence and this result
that the provisions of the Constitution were, in my opinion,
designed to attain to and accomplish : in order that the doc-
trines of religious belief, might be (as the history of Bible
worthies and of many Christian martyrs shows they have
been) superior to the unjust laws of the land ; and that every
citizen might become a law to himself, provided that such
religious belief and his law to himself did no injustice to any
person. Of such law — but not of unjust statutes, enacted
and repealed from year to year, tumultuous as the waves and
shifting as sand — it may be said, in the memorable words of
Hooker, " Of Law there can be no less acknowledged than
that her seat is the bosom of God, her voice the harmony of
the world. All things in heaven and earth do her homage ;
the very least as feeling her care, and the greatest as not
exempted from her power." "Government could exist only
in name under such circumstances," adds the Supreme Court ;

to which the answer is, that government is best that governs
least. To minimize to the utmost, governmental powers,
simply undertaking 4< to establish justice " (for " domestic
tranquillity " and " the general welfare," the other declared
purposes of the preamble, would follow as necessary conse-
quences when justice was established), and to secure the bless-
ings of liberty to the people, was the declared purpose, object,
intention, end, aim, and view of the Constitution. Any inter-
pretation or construction of that instrument, that enlarges the
powers of Congress beyond the powers delegated to it by the
Constitution is, in my opinion, injustice, and robs the people
of the States, and especially the people of the Territories, of
their natural rights and liberties. If legislative powers had
been granted (by express words or necessary implication) to,
and vested in Congress, to establish monogamy or polygamy,
or both of these systems, and to control or regulate the " social
relations and social obligations and duties " thence springing
as the "fruits" of marriage, I can readily believe Sect. 5,352
of United States Revised Statutes to be a legitimate act of
that granted power. At present I consider the decision of
the court upon it as illegitimate issue, begotten by the union
of usurped legislative power, and judicial acquiescence.

The court in closing its opinion of this part of the case
says, " The breaking of the law is a crime." In my opinion,
this statement is too broad — too sweeping. The breaking
of just law is crime, but the enacting of unjust law is also
crime, and the enforcing of unjust law is also crime, for both
one and the other, violate natural, essential, inalienable hu-
man rights. Such rights, congresses, legislatures, and hu-
man governments cannot create, and if abridged or violated,
except for the single purpose of maintaining justice, the
violators themselves are criminals.

No wonder that when legislative bodies and judges make
no discrimination between just statutes and unjust ones, but
acknowledge and enforce each and all of them as law^ that
eminent lawyers contemn the system, and its profession. Said
Henry F. Durant, known to some of you, gentlemen of

Massachusetts, as a very successful lawyer in Boston about
twenty years ago, afterwards as the founder of Wellesley
Female College, — said he, after his retirement from law prac-
tice, to his friend Col. Thomas W. Higginson,1 "Law is the
most narrowing and the most degrading of all professions.
All human law is a system of fossilized injustice, and the
habitual study of it only demoralizes." " But," said Mr. Hig-
ginson, wishing to draw him out, " law has been called the
noblest of the human sciences." " That is utter nonsense ! "
he exclaimed ; " there is not enough of thought or principle
in our whole system of law to occupy a man of intellect for
an hour; all the rest is mere chicanery and injustice."

Not wholly at variance with this opinion was that of Rufus
Choate, who said,2 "The law — to be a good lawyer is no
more than to be a good carpenter. It is a knack, — simply
running a machine."

I wish it to be distinctly understood, and I here assert
it with all possible emphasis, that I do not advocate polygamy
nor the Mormon religion. I advocate it no more, and no less,
than I would advocate the Roman Catholic, or any sect of
the Protestant religion under like circumstances. I oppose
persecution of the Mormons, as I would oppose persecution of
the Roman Catholics, or of any Protestant sect. I oppose
Sect. 5,352 of the Revised Statutes of the United States just
as much as, and no more than, I would oppose any law of Con-
gress respecting an establishment of religion, or prohibiting
the free exercise thereof to any existing or any future sect
of religionists. The Mormon bugbear which frightens many
people is polygamy. Evidence in this letter shows that
monogamic marriage is sometimes accompanied by sore evils
both to married and unmarried persons. Intelligent, consci-
entious Mormons say that the prevalent system of marriage
is a failure in civilized nations, that a reform is demanded,
and that there is an excess of the female above the male
population, and that every woman has a right to be a wife

1 See Boston Commonwealth, Oct. 22, 1881.

2 S. G. Brown's Works of Rufus Cboate, vol. i., p. 304.

and a mother. Having suffered persecution in New York,
Ohio, Missouri, and Illinois, more than thirty years ago they
emigrated to Great Salt Lake Valley, and there amid its
barren wastes, a thousand miles and more from their oppres-
sors, made their homes and reared their temple. After the
way which their persecutors call a " crime," " an evil," an
"abomination," a "stigma," and a "stench-heap," so worship
they the God of their fathers, believing all things which are
written in the law and the prophets.

No one has found them stirring up crowds, neither in
Christian churches nor Hebrew synagogues. They have
hope toward God, together with Christian and Jews, of a
better life beyond the grave. In their ways of life and labor,
they are quiet, inoffensive, loyal to the government, temper-
ate, virtuous, and religious. " Liberty," said Buckle, " is the
one thing most essential to the right development of individ-
uals, and the real grandeur of nations. It is the product of
knowledge, when knowledge advances in a healthy and regu-
lar manner ; but if, under certain unhappy circumstances, it
is opposed by what seems to be knowledge, then, in God's
name, let knowledge perish and liberty be preserved." Lib-
erty is not a means to an end, but is an end in itself. Un-
limited liberty is the natural and inalienable right of every
human being, so long and so far as he does not trespass on
the co-ordinate rights and liberties of others.

41 For always in thine eyes, O Liberty !
Shines that high light whereby the world is saved;
And, though thou slay us, we will trust in thee."

Believing, as I sincerely do, that that part of the opinion
of the Supreme Court considered in this letter, is utterly at
variance with the declared purpose, end, object, scope, and
principles of the Constitution, and is subversive of justice and
the blessings of liberty, and that Sect. 5,352 of the Revised
Statutes of the United States and the judgment of the
Supreme Court in said case do prohibit the free exercise of
religion to the Mormons, and thereby operate hurt, loss,

harm, damage, and other injustice to the Mormons, I ask
of you gentlemen of Massachusetts, to use efforts to repeal
that section and all other unjust and unconstitutional acts in
the United States statute-book.

I am honestly and courteously yours, for truth and justice
and liberty,

A CITIZEN OF MASSACHUSETTS.

FEBRUARY, 1882.

PART III.

APPENDIX.

I. CITATIONS JUSTIFYING POLYGAMY.
II. DR. FRANKLIN'S APOLOGUE, OB LESSON OF RELIGIOUS TOLERATION.

III. LAWS OF VIRGINIA, OCTOBER, 1785, ICTH OF COMMONWEALTH,

CAP. XXXIV. AN ACT FOR ESTABLISHING RELIGIOUS FREE-
DOM.

IV. TEXT OF so MUCH OF CHIEF JUSTICE WAITE'S OPINION AS RE-

LATES TO THE DEFENCE OF RELIGIOUS BELIEF OR DUTY.

MANY ancient lovers of wisdom, and religious writers,
justify polygamy. Limited space allows reference to only a
few of them.

" When God permits a thing in certain cases, and to certain per-
sons, or in regard to certain nations, it may be inferred, that the
thing permitted is not evil in its own nature." 1

My space will not permit me to give at length his interesting
argument upon this proposition ; but his logical conclusion is that
" polygamy, therefore, is not in its own nature evil and unlawful."
In another place2 he says, " But it cannot thence be inferred that
the thing [polygamy] is evil in itself, according to the law of
nature."

Theodoret says3 " that in Abraham's time polygamy was for-
bidden neither by the law of nature, nor by any written law."

St. Ambrose, speaking of polygamy, says, " That God, in the
terrestrial paradise, approved of the marriage of one with one ;
but without condemning the contrary practice." He then proceeds

i Grotius, B. I., c. ii., sect. 17. 2 B. II., c. v., seek 9.

8 Quaest. XLVIL, in Genes.

to quote Sarah's request to Abraham concerning Hagar, and Abra-
ham's response thereto.1

St. Chrysostom, speaking of Sarah, says, " She endeavored to
comfort her husband under her barrenness, with children b}7 her
handmaid, for such things were not then forbidden." 2

Jn another treatise3 the same Father says, " Nay, more : the law
permitted a man to have two wives at the same time ; in short,
great indulgence was granted in those and other particulars."

St. Augustine says, " It is objected against Jacob, that he had
four wives." To which he answers, t4 which, when a custom, was
not a crime." 4

In another of his writings he speaks of the custom of having
several wives at the same time as "an innocent thing," incul-
pabilis consuetudo,5 and observes that " it was prohibited by no
law."6

There is another authority more recent, and, because of its
author, will be of weight to unprejudiced citizens. John Adams,
the second President of the United States, and one of the most
illustrious founders of the Government, wrote a letter to Thomas
Jefferson, under date of May 16, 1822, in which he speaks of
religious liberty in these words : 7 —

" I do not like the late resurrection of the Jesuits. They have
a general now in Russia, in correspondence with the Jesuits in the
United States, who are more numerous than everybody knows.
Shall we not have swarms of them here? In as many shapes and
disguises as ever a king of the Gypsies — Bamfield Morecarew,
himself assumed? In the shape of printers, editors, writers,
schoolmasters, etc. I have lately read Pascal's letter over again,
and four volumes of the history of the Jesuits. If ever any con-
gregation of men could merit eternal perdition on earth and in
hell, according to these historians, though, like Pascal, true Cath-
olics, it is this company of Loyola. Our system, however, of

1 Lib. I., De Abraham, Cap. IV. Gratian has inserted this passage, and
another to the same purpose, in the Canon Law, Caus. XXXII., Qujest. IV.,
C. III.

2 Horn, in Genes.

8 On Virginity, Cap. XLIV.
4 Lib. XXII., contra Faustura, Cap. XL VII.
6 De Doctr. Christ., Lib. III., Cap. XII.
« De Civit. Dei, Lib. XVI., Cap. XXXVIII.
' Works of Jeff., vol. vi., p. 604.

religious liberty must afford them an asylum. But if they do not
put the purity of our elections to a severe trial, it will be a
wonder."

His prejudices against the Jesuits were as strong as those of
the most bitter Mormon-hater can be against the people of Utah ;
but how strong his sense of justice upon the point of religious
freedom ! They might merit eternal perdition on earth and in
hell, "but our system of religious liberty must afford them an
asylum." These were the sentiments of a statesman and true
lover of liberty, who subordinated prejudice to principle.

ABRAHAM AND THE STRANGER: A LESSON OF
RELIGIOUS TOLERATION.

BY BENJAMIN FEANKLIN.

1. AND it came to pass after these things that Abraham sat
in the door of his tent about the going down of the sun.

2. And behold a man, bowed with age, came from the way of
the wilderness, leaning on a staff.

3. And Abraham arose, and met him, and said unto him, " Turn
in, I pray thee, and wash thy feet, and tarry all night, and thou
shalt arise early on the morrow, and go on thy way."

4. But the man said, " Nay, for I will abide under this tree."

5. And Abraham pressed him greatly ; so he turned, and they
went into the tent, and Abraham baked unleavened bread, and
the}r did eat.

6. And when Abraham saw that the man blessed not God, he
said unto him, " Wherefore dost thou not worship the most high
God, Creator of heaven and earth?"

7. And the man answered and said, "I do not worship the God
thou speakest of, neither do I call upon his name ; for I have made
to myself a god which abideth alway in mine house, and provideth
me with all things."

8. And Abraham's zeal was kindled against the man, and -he
arose, and fell upon him, and drove him forth with blows into the
wilderness.

9. And at midnight God called unto Abraham, saying, " Abra-
ham, where is the stranger? "

10. And Abraham answered and said, " Lord, he would not
worship thee, neither would he call upon thy name ; therefore have
I driven him out from before my face into the wilderness."

11. And God said, " Have I borne with him these hundred
ninety and eight years, and nourished him, notwithstanding his
rebellion against me ; and couldst not thou, that art thyself a
sinner, bear with him one night? "

12. And Abraham said, "Let not the anger of the Lord wax
hot against his servant ; lo, I have sinned ; forgive me, I pray
thee."

13. And Abraham arose, and went forth into the wilderness,
and sought diligently for the man, and found him, and returned
with him to the tent; and, when he had entreated him kindly, he
sent him awa}r on the morrow with gifts.

LAWS OF VIRGINIA, OCTOBER, 1785, 10TH OF COM-
MONWEALTH, CAP. XXXIV.

AN ACT FOR ESTABLISHING RELIGIOUS FREEDOM.

PREAMBLE I. Whereas, Almighty God hath created the mind
free ; that all attempts to influence it by temporal punishments or
burthens, or by civil incapacitations, tend only to beget habits of
hypocris}- and meanness, and are a departure from the plan of the
Holy Author of our religion, who being Lord both of body and
mind, yet chose not to propagate it by coercions on either, as was
in his Almighty power to do ; that the impious presumption of
legislators and rulers, civil as well as ecclesiastical, who, being
themselves but fallible and uninspired men, have assumed domin-
ion over the faith of others, setting up their own opinions and
modes of thinking as the only true and infallible, and as such en-
deavoring to impose them on others, hath established and main-
tained false religions over the greatest part of the world, and
through all time ; that to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves is sin-
ful and tyrannical ; that even the forcing him to support this or

that teacher of his own religious persuasion, is depriving him of
the comfortable liberty of giving his contribution to the particular
pastor whose morals he would make his pattern, and whose pow-
ers he feels most persuasive to righteousness, and is withdrawing
from the ministry those temporary rewards, which, proceeding from
an approbation of their personal conduct, are an additional incite-
ment to earnest and unremitting labors for the instruction of man-
kind ; that our civil rights have no dependence on our religious
opinions any more than our opinions in physics or geometry ; that
therefore the proscribing any citizen as unworthy the public confi-
dence, by laying upon him an incapacity of being called to offices
of trust and emolument, unless he profess this or that religious
opinion, is depriving him injuriously of those privileges and ad-
vantages to which in common with his fellow-citizens he has a
natural right ; that it tends only to corrupt the principles of that
religion it is meant to encourage, by bribing with a monopoly of
Worldly honors and emoluments, those who will externally profess
and conform to it ; that though these indeed are criminal who do
not withstand such temptation, yet neither are those innocent who
lay the bait in their way ; that to suffer the civil magistrate to in-
trude his powers into the field of opinion, and to restrain the pro-
fession or propagation of principles on supposition of their ill
tendency, is a dangerous fallac}*, which at once destroys all reli-
gious liberty, because he, being of course judge of that tendency,
will make his opinions the rule of judgment, and approve or con-
demn the sentiments of others only as they shall square with or
differ from his own ; that it is time enough, for the rightful pur-
poses of civil government, for its officers to interfere, when princi-
ples break out into overt acts against PEACE and good order ; and,
finally, that truth is great and will prevail if left to herself, that
she is the proper and sufficient antagonist to error, and has noth-
ing to fear from the conflict, unless by human interpretation dis-
armed of her natural weapons, free argument and debate, errors
ceasing to be dangerous when it is permitted freely to contradict
them.

II. Be it enacted by the General Assembly, That no man shall
be compelled to frequent or support any religious worship, place,
or ministry whatsoever, nor shall be enforced, restrained, molested,
or burdened in his body or goods, nor shall otherwise suffer on ac-

count of his religious opinions or belief; but that all men shall be
free to profess, and by argument to maintain, their opinion in mat-
ters of religion, and that the same shall nowise diminish, enlarge,
or affect their civil capacities.

III. And, though we well know that this assembl}-, elected by
the people for the ordinary purposes of legislation onl\r, have no
power to restrain the acts of succeeding assemblies, constituted
with powers equal to our own. and therefore to declare this act to
be irrevocable would be of no effect in law ; yet we are free to
declare, and do declare, that the rights herebj' asserted are of the
natural rights of mankind, and that if any act shall be hereafter
passed to repeal the present, or to narrow its operations, such act
will be an infringement of natural rights.

12 Hening's Statutes at Large, pp. 84-86.

TEXT OF SO MUCH OF CHIEF JUSTICE WAITE'S OPINION IN
REYNOLDS vs. UNITED STATES, 1)8 SUPREME COURT U. S.
REPORTS, AS DISCUSSES ART. I. OF ADDITIONS AND AMEND-
MENTS TO THE CONSTITUTION, WHICH ARTICLE DECLARES
THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN
ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE THEREOF, OR ABRIDGING THE FREEDOM OF
SPEECH OR OF THE PRESS."

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at
the time of his alleged second marriage he was, and for many years
before had been, a member of the Church of Jesus Christ of Latter-
Day Saints, commonly called the Mormon Church, and a believer
in its doctrines; that it was an accepted doctrine of that church,
" that it was the duty of male members of said church, circum-
stances permitting, to practise polygamy ; . . . that this duty was
enjoined by different books which the members of said church be-
lieved to be of divine origin, and among others the Holy Bible,
and also that the members of the church believed that the practice
of polygamy was directly enjoined upon the male members thereof
by the Almighty God, in a revelation to Joseph Smith, the founder
and prophet of said church ; that the failing or refusing to prac-
tise polygamy by such male members of said church, when circum-

stances would admit, would be punished, and that the penalty for
such failure and refusal would be damnation in the life to come."
He also proved " that he had received permission from the recog-
nized authorities in said church to enter into polygamous mar-
riages ; . . . that Daniel H. Wells, one having authority in said
church to perform the marriage ceremony, married the said de-
fendant on or about the time the crime is alleged to have been
committed, to some woman by the name of Schofield, and that
such marriage ceremony was performed under and pursuant to the
doctrines of said church."

Upon this proof he asked the court to instruct the jury that if
they found from the evidence that he " was married as charged —
if he was married — in pursuance of and in conformity with what
he believed at the time to be a religious duty, that the verdict must
be not guilty." This request was refused, and the court did
charge u that there must have been a criminal intent, but that if
the defendant, under the influence of a religious belief that it was
right — under an inspiration, if 3-011 please, that it was right —
deliberately married a second time, having a first wife living, the
want of consciousness of evil intent — the want of understanding
on his part that he was committing a crime — did not excuse him ;
but the law inexorably in such cases implies the criminal intent."

Upon this charge, and refusal to charge, the question is raised
whether religious belief can be accepted as a justification of an
overt act made criminal by the law of the land. The inquiry is
not as to the power of Congress to prescribe criminal laws for the
Territories, but as to the guilt of one who knowingly violates a law
which has been properly enacted, if he entertains a religious belief
that the law is wrong.

Congress cannot pass a law for the government of the Territories
which shall prohibit the free exercise of religion. The first amend-
ment to the Constitution expressly forbids such legislation. Re-
ligious freedom is guaranteed everywhere throughout the United
States, so far as Congressional interference is concerned. The
question to be determined is whether the law now under considera-
tion comes within this prohibition.

The word "religion" is not defined in the Constitution. We
must go elsewhere, therefore, to ascertain its meaning, and no-
where more appropriately, we think, than to the history of the

times in the midst of which the provision was adopted. The
precise point of the inquiry is, what is the religious freedom which
has been guaranteed ?

Before the adoption of the Constitution attempts were made in
some of the Colonies and States to legislate, not only in respect to
the establishment of religion, but in respect to its doctrines and
precepts as well. The people were taxed against their will for the
support of religion, and sometimes for the support of particular
sects to whose tenets the}' could not and did not subscribe. Pun-
ishments were prescribed for a failure to attend upon public wor-
ship, and sometimes for entertaining heretical opinions. The
controversy upoi\ this general subject was animated in many of
the States, but seemed at last to culminate in Virginia. In 1784
the house of delegates of that State, having under consideration
"a bill establishing provision for teachers of the Christian reli-
gion," postponed it until the next session, and directed that the
bill be published and distributed, and that the people be requested
" to signify their opinion respecting " the adoption of such a bill
at the next session of assembly."

This brought out a determined opposition. Amongst others,
Mr. Madison prepared a "Memorial and Remonstrance," which
was widely circulated and signed, and in which he demonstrated
"that religion, or the duty we owe the Creator," was not within
the cognizance of civil government. (Semple's Virginia Baptists,
Appendix.) At the next session the proposed bill was not only de-
feated, but another "for establishing religious freedom," draughted
by Mr. Jefferson (1 Jeff. Works, 45 ; 2 Howison's Hist, of Va.,
298), passed. In the preamble of this act (12 Hening's Stat.,
84) religious freedom is denned ; and after a recital " that to suffer
the civil magistrate to intrude his powers into the field of opinion,
and to restrain the profession or propagation of principles on sup-
position 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 dis-
tinction between what properly belongs to the Church and what to
the State.

In a little more than a year after the passage of this statute,

the convention met which prepared the Constitution of the United
States. Of this convention Mr. Jefferson was not a member, he be-
ing absent as minister to France. As soon as he saw the draught
of the Constitution proposed for adoption, he, in a letter to a friend,
expressed his disappointment at the absence of an express declara-
tion insuring -the freedom of religion (2 Jeff. Works, 355), but
was willing to accept it as it was, trusting that the good sense and
honest intentions of the people would bring about the necessary
alterations (1 Jeff. Works, 79). Five of the States, while
adopting the Constitution, proposed amendments. Three, New
Hampshire, New York, and Virginia, included in one form or
another a declaration of religious freedom in th£ changes they de-
sired to have made, as did also North Carolina, where the Conven-
tion at first declined to ratify the Constitution until the proposed
amendments were acted upon. Accordingly at the first session of
the first Congress the amendment now under consideration was
proposed, with others, by Mr. Madison. It met the views of the
advocates of religious freedom, and was adopted. Mr. Jefferson
afterwards, in reply to an address to him by a committee of the
Danbury Baptist Association (8 Jeff. Works, 113), took occasion
to sa}r, "Believing with you, that religion is a matter which lies
solely between a man and his God, that he owes account to none
other for his faith or his worship, that the legislative powers of the
Government reach actions only, and not opinions, I contemplate
with sovereign reverence that act of the whole American people
which declared that their legislature should ' make no law respect-
ing an establishment of religion, or prohibiting the free exercise
thereof,' thus building a wall of separation between Church and
State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with sincere
satisfaction the progress of those sentiments which tend to restore
man to all his natural rights, convinced he has no natural right in
opposition to his social duties." Coming as this cloes from an
acknowledged leader of the advocates of the measure, it may be
accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured. Congress was deprived of
all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of
good order.

Polygamy has always been odious among the northern and
western nations of Europe, and, until the establishment of the
Mormon church, almost exclusively a feature of the life of Asiatic
and African people. At common law the second marriage was
always void (2 Kent's Com., 79), and from the earliest history of
England polygamy has been treated as an offence against society.
After the establishment of the ecclesiastical courts, and until the
time of James I., it was punished through the instrumentality of
those tribunals, not merely because ecclesiastical rights had been
violated, but because, upon the separation of the ecclesiastical
courts from the civil, the ecclesiastical were supposed to be the
most appropriate for the trial of matrimonial causes, and offences
against the rights of marriage, just as they were for testa-
mentary causes, and the settlement of the estates of deceased
persons.

By the statute of 1 James I., chap. 11, the offence, if com-
mitted in England or Wales, was made punishable in the civil
courts, and the penalty was death. As this statute was limited in
its operation to England and Wales, it was at a very early period
re-enacted, generally with some modifications, in all the colonies.
In connection with the case we are now considering, it is a signifi-
cant fact, that on the 8th of December, 1788, after the passage
of the act establishing religious freedom, and after the convention
of Virginia had recommended, as an amendment to the Constitu-
tion of the United States, the declaration in a bill of rights, that
*' all men have an equal, natural, and unalienable right to the free
exercise of religion, according to the dictates of conscience," the
legislature of that State substantially enacted the statute of James
I., death penalty included, because, as recited in the preamble,
u it hath been doubted whether bigan^or polygamy be punishable
by the laws of this Commonwealth." (12 Hening's Stat., G91.)
From that day to this, we think it may safely be said, there never
has been a time in any State of the Union when polygamy has not
been an offence against society, cognizable by the civil courts, and
punishable with more or less severity. In the face of all this evi-
dence, it is impossible to believe that the constitutional guaranty
of religious freedom was intended to prohibit legislation in respect
to this most important feature of social life. Marriage, while
from its very nature a sacred obligation, is nevertheless, in most

civilized nations, a civil contract, and usually regulated by law.1
Upon it society may be said to be built, and out of its fruits spring
social relations and social obligations and duties, with which gov-
ernment is necessarily required to deal. In fact, according as
monogamous or polygamous marriages are allowed, do we find the
principles on which the government of the people, to a greater or
less extent, rests. Professor Lieber says polygamy leads to the
patriarchal principle, which, when applied to large communities,
fetters the people in stationary despotism, while that principle
cannot long exist in connection with monogamy. Chancellor Kent
observes that this remark is equally striking and profound. (2
Kent's Com., 81, note e.) An exceptional colony of polygamists,
under an exceptional leadership, may sometimes exist for a time
without appearing to disturb the social condition of the people
who surround it ; but there cannot be a doubt that, unless
restricted by some form of constitution, it is within the legitimate
scope of the power of every civil government to determine whether
polygamy or monogamy shall be the law of social life under its
dominion.

In our opinion, the statute immediately under consideration is
within the legislative power of Congress. It is constitutional and
valid as prescribing a rule of action for all those residing in the
Territories, and in places over which the United States have ex-
clusive control. This being so, the onl}T question which remains
is, whether those who make polygamy a part of their religion are
excepted from the operation of the statute. If they are, then
those who do not make polygamy a part of their religious belief
may be found guilty and punished ; while those who do must be
acquitted and go free. This would be introducing a new element
into criminal law. Laws are made for the government of actions,
and, while they cannot interfere with mere religious belief and
opinions, they may with practices. Suppose one religiously be-
lieved that human sacrifices were a necessary part of religious
worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice?
Or, if a wife religiously believed it was her duty to burn herself

1 In all Catholic countries marriage is a sacrament, and its obligation a
religious one, so that marriage in certain countries and among certain people,
and among the Mormons, is a religious institution. — Note by author.

upon the funeral pile of her dead husband, would it be beyond the
power of the civil government to prevent her carrying her belief
into practice ?

So here, as a law of the organization of society, under the ex-
clusive dominion of the United States, it has been prescribed that
plural marriages shall not be allowed. Can a man excuse his
practices to the contrary because of his religious belief? To per-
mit this, would be to make the professed doctrines of religious
belief superior to the law of the land ; and, in effect, to permit
every citizen to become a law unto himself. Government could
exist only in name under such circumstances.

A criminal intent is a necessary element of crime, but every
man is presumed to intend the necessary and legitimate conse-
quences of what he knowingly does. Here the accused knew that
he had been once married, and tjiat his first wife was living. He
also knew that his second marriage was forbidden by law. When,
therefore, he married the second time, he is presumed to have
intended to break the law. And the breaking of the law is the
crime. Every act necessary to constitute the crime was knowingly
done, and the crime therefore was knowingly committed. Igno-
rance of a fact may sometimes be taken as evidence of a want of
criminal intent, but not ignorance of the law. The only defence
of the accused in this case is his belief that the law ought not to
have been enacted. It matters not that his belief was a part of
his professed religion, it was still belief, and belief only.

In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents
of a sick child, who omitted to call in medical attendance because
of their religious belief that what they did for its cure would be
effective, were held not to be guilty of man-slaughter, while it was
said the contrary would have been the result if the child had actu-
ally been starved to death by the parents under the notion that it
was their religious duty to abstain from giving it food. But when
the offence consists of a positive act, which is knowingly done, it
would be dangerous to hold that the offender might escape punish-
ment because he religiously believed the law which he had broken
ought never to have been made. No case, we believe, can be
found that has gone so far.

6. As to that part of the charge which directed the attention
of the juiy to the consequences of polygamy.

The passage complained of is as follows : " I think it not im-
proper, in the discharge of your duties in this case, that you
should consider what are to be the consequences to the innocent
victims of this delusion. As this contest goes on they multiply,
and there are pure-minded women, and there are innocent children
— innocent in a sense even beyond the degree of the innocence of
childhood itself. These are to be the sufferers ; and as jurors fail
to do their duty, and as these cases come up in the Territory of
Utah, just so do these victims multiply and spread themselves over
the land."

While every appeal by the court to the passions or the preju-
dices of a jury should be promptly rebuked, and while it is the
imperative duty of a reviewing court to take care that wrong is
not done in this way, we see no just cause for complaint in this
case. Congress, in 1862 (12 Stat., 501), saw fit to make bigamy
a crime in the Territories. This was done because of the evil
consequences that were supposed to flow from plural marriages.
All the court did was to call the attention of the jury to the
peculiar character of the crime for which the accused was on trial,
and to remind them of the duty the3T had to perform. There was
no appeal to the passions ; no instigation of prejudice. Upon the
showing made by the accused himself, he was guilty of a violation
of the law under which he had been indicted, and the effort of the
court seems to have been, not to withdraw the minds of the jury
from the issues to be tried, but to bring them to it ; not to make
them partial, but to keep them impartial.

Upon a careful consideration of the whole case, we are satisfied
that no error was committed by the court below, and the judgment
is consequently affirmed.

x%v

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