Читать книгу Defense of the Faith and the Saints (Vol.1&2) - B. H. Roberts - Страница 44

I now come to the speech itself; my reply will follow the order of the topics set forth in the speech, with very slight exceptions; and by reason of following the order of topics laid down in the speech, I come first of all to the consideration of the pledges under which Utah obtained statehood—the compact between the State of Utah and the United States.

Of that long conflict that raged in Utah from early days down to the year 1890 I need not speak. You are familiar with its history. You know that the foundation facts of that controversy are these: that the Latter-day Saints believed a revelation had been given in which was made known, first of all, the eternity of the marriage covenant, with the permission and I may say injunction, under certain circumstances, for good men to have a plurality of wives. You know of the successive enactments of Congress, made at the demand of sectarian clamor throughout the United States against this practice. You know how these successive acts brought to bear hardships upon the Church, until at last we were relieved from the responsibility and obligation of maintaining in practice that plural marriage system, by the issuance of the Manifesto by President Wilford Woodruff in 1890. You know upon that step being taken, that the bitterness of feeling that had hitherto existed subsided; and there began to be manifested a desire that the old Church and anti-Church political parties should be disbanded, and that here in Utah, as in the other states of the Union, the people should divide according to their political convictions to one or the other of the great national political parties. These movements finally resulted in the passage of an Enabling Act, authorizing the election of a Constitutional convention for the purpose of framing a state government. This convention met in the spring of 1895, and was the instrument through which so far as the people of Utah are concerned, the compact between the State of Utah and the United States was made.

When it is necessary to establish what a given compact is, instead of calling to mind this man's opinion, and that man's opinion of it, why not go to the compact itself, and after considering it give it a fair interpretation? That is the method of treatment that I have proposed to myself, and consequently I am going to that compact. The Enabling act contained this clause, which was the crystallized demand of the people of the United States upon the people of Utah:

"And said convention shall provide by ordinance, irrevocable, without the consent of the United States and the people of said state:

"First, that perfect toleration of religious sentiment shall be secure, and that no inhabitant of said state shall be molested in person on account of his or her mode of religious worship; provided that polygamous or plural marriages are forever prohibited."

That is what the people of the United States demanded of the people of Utah through the voice of the national Congress—nothing more than that, nothing less than that. Polygamous or plural marriages are to be forever prohibited. That is the demand of the people of the United States.

That being the demand, what was the response to it on the part of the people of Utah, speaking through the Constitutional convention? This was the response:

ORDINANCE.

"The following ordinance shall be irrevocable without the consent of the United States and the people of the state:

"First, perfect toleration of religious sentiment is guaranteed. No inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited."

You will observe that the convention incorporated in this provision the very language of the Enabling act.

That was the demand, and that the response to the demand. But it was not all of the response. There was something more. After this declaration had been made, towards the conclusion of the work of the convention, when that part of the Constitution called the "Schedule" was introduced (and by the way, in order that you may understand that I have clear knowledge of these matters from personal participation in them, I may say that I was a member of the committee on "Schedule"), Mr. Varian, a member from Salt Lake county, called the attention of the convention to the fact that while we had made this declaration against "polygamous or plural marriages," he held, and very rightly, too, that it was not self-operating, and provided no penalties for its violation; but was merely a declaration, and he doubted if it would be sufficient to meet the expectations of the people of the United States. He therefore recommended a certain course now to be described. You perhaps will remember that our territorial Legislature of 1892 enacted what was virtually the Edmunds-Tucker law. They followed very closely the congressional enactment. Now, said Mr. Varian, in substance, your Legislature enacted practically the law of Congress against these offenses; that being the case, it expresses the willingness of your legislators to meet the demands of the country on this subject. Therefore, let us take so much of this territorial enactment as defines "polygamy, or plural marriage," and provides for the punishment thereof, and make it a provision in this Constitution, operating without any further legislation. Then the people of the United States will know that you mean really to prohibit "polygamous or plural marriages" against which you make your declaration in the ordinance. In pursuance of this proposition he introduced this resolution:

"The act of the governor and Legislative Assembly of the territory of Utah, entitled, 'An act to punish polygamy and other kindred offenses,' approved Feb. 4, AD 1892, in so far as the same defines and imposes penalties for polygamy, is hereby declared to be in force in the State of Utah."

Mr. Varian was of the opinion that since this territorial enactment invaded the field already occupied by congressional enactment it was void, and that when Utah became a state the territorial law would not be in force in the state, and of course the congressional enactments applicable to the territory would cease to be operative upon the attainment of statehood; hence he thought it necessary to make this constitutional provision against "polygamous or plural marriages." But the part of the territorial law relating to polygamous living or "unlawful cohabitation"—to use the phrase of the law itself—was not made part of the Constitution of this state. And why? Because the demand made by the people of the United States did not reach to that condition. The demand was only: "provided polygamous or plural marriages are forever prohibited." There were other lawyers in the constitutional convention who contested Mr. Varian's opinion, and insisted that this law of the territory would be operative in the state, and therefore there was no need of adopting his amendment; whereupon a protracted and earnest debate took place, in the course of which it was pointed out to Mr. Varian that he had cut this old territorial law in two; he had taken the part that defined and prohibited "polygamy or plural marriages" and made it part of the Constitution, but he had left out the part of the law relating to unlawful cohabitation, and the effect of such action by implication would be to repeal that part of the territorial law defining and punishing unlawful cohabitation. In the course of the argument made on that point in the convention the following took place:

Mr. Evans (Weber)—I would like to ask you [Mr. Varian] a question. The gentleman will agree with me that your [his] amendment will repeal the other kindred offenses in that statute?"

Mr. Varian [answering Mr. Evans]—No; there is nothing to repeal. If you want the other kindred offenses [dealt with], my answer is, prohibit them by law under penalties. * * * *

Mr. Evans (Weber)—I would like to ask one question. Suppose the act of 1892 were valid? (i.e., the territorial law dealing with polygamy and unlawful cohabitation, polygamous living, is referred to)—

Mr. Varian—If the law were valid I should not then introduce—

Mr. Evans (Weber)—Wouldn't it then repeal everything except the polygamy?

Mr. Varian—If the law were valid it might repeal by implication, although repeals by implication are not favored.[1]

Mr. Varian's resolution was adopted and became part of the Constitution, so that in the matter of compact between Utah and the United States on the subject of polygamy [i.e., polygamous marrying] our response went even beyond the demand of the people of the United States as voiced in the Enabling act authorizing us to establish a state government, in that we not only adopted the very language of the enabling act, but accepted the definition of polygamy and provided the punishment, prescribed for that offense by Congress; but no demand was made and no action was taken respecting unlawful cohabitation; nor did it in any manner enter into Utah's compact with the United States.[1]

"In accordance with the general convictions of civilized men and the spirit of free institutions, religious liberty will be fully secured by the organic law and a prohibition against plural or polygamous marriages adopted in deference to the suggestion by Congress. Whether it shall ever be stricken from the Constitution will depend solely upon the future temper and will of the people. It will be observed that the actual polygamous status, or living with two or more women as wives, known in Utah as a criminal offense termed "unlawful cohabitation," is not referred to in the proviso of the Enabling Act. Whether the Constitution builders will content themselves with prohibiting polygamous marriages, or will go further and prescribe the polygamous association also will be developed in time."

And time developed the fact that the Constitutional Convention took no action whatsoever in relation to polygamous living, nor was any attempt made to deal with that phase of the question since the convention conceived that it had done its full duty, all that was required of it, by the Enabling Act, by "Forever prohibiting plural or polygamous marriages."]

Now, understand me, I am not taking the ground that unlawful cohabitation—"polygamous living"—as it has come to be called—is not now contrary to the law in Utah. That it is under the ban of the law is known to every one. But it became so because our state Legislature, after the constitutional convention had settled this vexed question upon the terms here pointed out—our state Legislature (and why I have never yet understood) proceeded to unsettle what had been settled in that convention, picked up the part of the old territorial law that had been discarded by the convention and enacted it with the rest of the code prepared by the special code commission.

Hence unlawful cohabitation is under the ban by our state enactment; and I am not arguing that polygamous living is not against the law, and am not attempting to justify any one in the violation of that law. I am now merely pointing out the fact that in our compact with the government of the United States disruption of marital relations coming down to us out of the past constituted no part of that compact. The terms of the compact are here in the Enabling act and in the Constitution, and may be read and known of all men.

That compact was not made between the Mormon Church leaders, as claimed by Mr. Kearns' adopted speech, and the United States government, but between the people of the United States acting through Congress and the chief executive of the nation, and the people of Utah, acting through their representatives in the Constitutional convention. Utah's Constitutional convention sought earnestly to meet the demands made upon our people by the nation. The chief executive of the nation by accepting the Constitution we had formed and proclaiming Utah's admission into the Union, said we had succeeded in meeting those demands. To undertake now to read into that compact something that was not demanded by the Enabling act, and not conceded by the convention, that is not expressly found in its terms, and not fairly to be implied from them, is infamous. Yet that is what is constantly sought to be done, and we have all sorts of extravagant claims made as to what the Mormon Church leaders pledged in order to obtain statehood—the compact they made with the nation, and how the Mormon Church has broken it, but never a word do we hear as to the compact itself. The Mormon Church leaders made no pledges to obtain statehood, except as in common with all the people of the state they accepted and ratified the compact implied in the Enabling act and the provision in the Utah Constitution forever prohibiting polygamous or plural marriages and providing penalties for that offense. The Mormon Church officials pleaded for amnesty for their people, it is true, but amelioration of the hard conditions which a cruel enforcement of the law imposed, not statehood, was the object of their petition.

The foregoing, then, was the compact between the State of Utah and the United States. The question now is, Has it been violated by the State of Utah or by the United States. Certainly not by the latter; and I affirm, with absolute confidence that the affirmation cannot be successfully contradicted, that the compact has not been violated by the State, or the people of Utah. On the contrary, I hold that the compact, such as it was, has been absolutely fulfilled. In this opinion I am sustained by the views of a very distinguished member of the House of Representatives, who discussed the subject somewhat at length on the floor of the House when the Roberts case was considered by that body. It was urged in the report of the special committee which investigated the right of the Representative from Utah to his seat in the House, that "his election as a Representative is an explicit and offensive violation of the 'understanding' by which Utah was admitted as a state."

This "understanding" and the "compact" were discussed on the floor of the House by Representative Littlefield (of Maine) in the following language:

"I would like to enquire of the majority where they find the authority for the proposition that the United States government can go into the question of an 'understanding' that existed before a State was admitted into this Union, and then, having found it, exercise this domiciliary, supervisory, disciplinary power over the State. Where does it exist? What is it indicated by? Is it oral? They do not undertake to suggest it is in the Enabling act, although they refer to it. But is it an oral 'understanding' that exists between the States and the general government by reason of this 'general welfare' power? I assume that they invoke it under this 'general welfare' proposition. Think of it! an 'understanding' which is based on—what? A compact or a contract? I had supposed it was too late at this stage of the history of the republic, in these times of peace, to invoke the proposition of a contract existing between the States and the general government. I knew that the theory of a contract was the parent of the infamous heresy, and I have believed that it was wiped out in blood from 1861 to 1865. More than five hundred thousand of the best, truest, most heroic and bravest men that ever met on the field of battle—the blue and the grey, brethren all—rendered up their lives that that infamous proposition should be blotted out, and blotted out forever. Let the dead past bury its dead. I submit that under these circumstances it ill becomes this House to undertake, in the interest if you please of civilization, to invoke anew the proposition of a contract existing between a State and the United States."

Discussing the question of "compact" further, Mr. Littlefield said:

"Compact is synonymous with contract. The idea of a compact or contract is not predicable upon the relations that exist between the State and the general government. They do not stand in the position of contracting parties. The condition upon which Utah was to become a State was fully performed when she became a State. The Enabling act authorized the President to determine when the condition was performed. He discharged that duty, found that the condition was complied with, and that condition no longer exists.

"What did Congress require by the Enabling act? Simply that 'said convention shall provide by ordinance irrevocable,' etc., and the convention did in terms what it was required to do. It was a condition upon the performance of which by the convention the admission of Utah depended. Its purpose accomplished, its office is gone, and as a condition it ceases to exist. No power was reserved in the Enabling act, nor can any be found in the Constitution of the United States, authorizing Congress, not to say the House of Representatives alone, to discipline the people in or the State of Utah, because the crime of polygamy or unlawful cohabitation has not been exterminated in Utah. Where is the warrant to be found for the exercise of this disciplinary, supervisory power. This theory is apparently evolved for the purposes of this case, is entirely without precedent, and has not even the conjecture or dream of any writer to stand upon."

With Mr. Littlefield, then, I say, that so far from the compact between Utah and the United States having been violated, it has been fulfilled. Utah has made no effort to repeal the Constitutional provision forever prohibiting polygamous or plural marriages. On the contrary, her State Legislature has even re-enacted the part of the old Congressional and Territorial law that had been ignored by the Constitutional convention, defining and punishing polygamous living—that is, "unlawful cohabitation."