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98 U.S. 145
October Term, 1878
ERROR to the Supreme Court of the Territory of Utah.
This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows:--
'Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years.'
[Questions and excerpts of record regarding jury selection and service of process omitted.]
The court, in summing up to the jury, declined to instruct them, as requested by the prisoner, that if they found that he had married in pursuance of and conformity with what he believed at the time to be a religious duty, their verdict should be 'not guilty,' but instructed them that if he, under the influence of a religious belief that it was right, had '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 crime-did not excuse him, but the law inexorably, in such cases, implies criminal intent.'
The court also said: 'I think it not improper, 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, just so do these victims multiply and spread themselves over the land.'
To the refusal of the court to charge as requested, and to the charge as given, the prisoner excepted. The jury found him guilty, as charged in the indictment; and the judgment that he be imprisoned at hard labor for a term of two years, and pay [98 U.S. 145, 151] a fine of $500, rendered by the District Court, having been affirmed by the Supreme Court of the Territory, he sued out this writ of error.
The assignments of error are set out in the opinion of the court.
Mr. George W. Biddle and Mr. Ben Sheeks for the plaintiff in error.
First, The jury was improperly drawn. Two of the jurors were challenged for cause by the defendant below, because they admitted that they had formed, and still entertained, an opinion upon the guilt or innocence of the prisoner. The holding by a juror of any opinions which would disqualify him from rendering a verdict in accordance with the law of the land, is a valid objection to his serving.
An opinion based merely upon a hypothetical case, as that 'if so and so is true, the prisoner is guilty,' is not always sufficient; but where the opinion is as to the actual fact of guilt or innocence, it is a disqualification, according to all the authorities. Burr's Trial, 414, 415; United States v. Wilson, 1 Baldw. 83; Ex parte Vermilyea, 6 Cow. (N. Y.) 563; The People v. Mather, 4 Wend. (N. Y.) 238; Cancemi v. People, 16 N. Y. 502; Fouts v. The State, 11 Ohio St. 472; Neely v. The People, 23 Ill. 685; Schoeffler v. The State, 3 Wis. 831; Trimble v. The State, 2 Greene (Iowa), 404; Commonwealth v. Lesher, 17 Serg. & R. (Pa.) 155; Staup v. Commonwealth, 74 Pa. St. 458; Armistead's Case, 11 Leigh (Va.), 658; Stewart v. The State, 13 Ark. 740.
It was clearly erroneous for the prosecution to ask several of the jurymen, upon voire dire, whether they were living in polygamy; questions which tend to disgrace the person questioned, or to render him amenable to a criminal prosecution, have never been allowed to be put to a juror. Anonymous, Salk. 153; Bacon, Abr., tit. Juries, 12(f); 7 Dane, Abr. 334; Hudson v. The State, 1 Blackf. (Ind.) 319.
Second, The proof of what the witness, Amelia Jane Schofield, testified to in a former trial, under another indictment, should not have been admitted. The constitutional right of a prisoner to confront the witness and cross-examine him is not to be abrogated, unless it be shown that the witness is dead, or [98 U.S. 145, 152] out of the jurisdiction of the court; or that, having been summoned, he appears to have been kept away by the adverse party on the trial. It appeared not only that no such person as Amelia Jane Schofield had been subpoenaed, but that no subpoena had ever been taken out for her. An unserved subpoena with the name of Mary Jane Schobold was shown. At nine o'clock in the evening, during the trial, a new subpoena was issued; and on the following morning, with no attempt to serve it beyond going to the prisoner's usual residence and inquiring for her, the witness Patterson was allowed to read from a paper what purported to be statements made by Amelia Jane Schofield on a former trial. No proof was offered as to the genuineness of the paper or its origin, nor did the witness testify to its contents of his own knowledge. This is in the teeth of the ruling in United States v. Wood (3 Wash. 440), and the rule laid down in all the American authorities. Richardson v. Stewart, 2 Serg. & R. (Pa.) 84; Chess v. Chess, 17 id. 409; Huidekopper v. Cotton, 3 Watts (Pa.) 56; Powell v. Waters, 17 Johns. (N. Y.) 176; Cary v. Sprague, 12 Wend. (N. Y.) 45; The People v. Newman, 5 Hill (N. Y.), 295; Brogy v. The Commonwealth, 10 Gratt . (Va.) 722; Bergen v. The People, 17 Ill. 426; Dupree v. The State, 33 Ala. 380.
Third, As to the constitutionality of the Poland Bill. Rev. Stat., sect. 5352. Undoubtedly Congress, under art. 4, sect. 3, of the Constitution, which gives 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,' and under the decisions of this court upon it, may legislate over such territory, and regulate the form of its local government. But its legislation can be neither exclusive nor arbitrary. The power of this government to obtain and hold territory over which it might legislate, without restriction, would be inconsistent with its own existence in its present form. There is always an excess of power exercised when the Federal government attempts to provide for more than the assertion and preservation of its rights over such territory, and interferes by positive enactment with the social and domestic life of its inhabitants and their internal police. The offence prohibited by sect. 5352 is not a malum in se; it is not prohibited by the decalogue; and, if it be said [98 U.S. 145, 153] that its prohibition is to be found in the teachings of the New Testament, we know that a majority of the people of this Territory deny that the Christian law contains any such prohibition.
The Attorney-General and The Solicitor-General, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The assignments of error, when grouped, present the following questions:--
1. Was the indictment bad because found by a grand jury of less than sixteen persons?
2. Were the challenges of certain petit jurors by the accused improperly overruled?
3. Were the challenges of certain other jurors by the government improperly sustained?
4. Was the testimony of Amelia Jane Schofield, given at a former trial for the same offence, but under another indictment, improperly admitted in evidence?
5. Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?
6. Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy?
These questions will be considered in their order.
1. As to the grand jury.
[Discussion of Issues 1-4 omitted]
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, circumstances permitting, to practise polygamy ; . . . that this duty was enjoined by different books which the members of said church believed 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 practise polygamy by such male members of said church, when circumstances 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 recognized authorities in said church to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant 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 [98 U.S. 145, 162] 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 '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 you 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 case 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 amendment to the Constitution 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 is, whether the law now under consideration comes within this prohibition.
The word 'religion' 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 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 they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining [98 U.S. 145, 163] heretical opinions. The controversy upon 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 religion,' postponed it until the next session, and directed that the bill should 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 defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) 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 profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction 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 being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration 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. [98 U.S. 145, 164] 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 the changes they desired to have made, as did also North Carolina, where the convention 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 id. 113), took occasion to say:
'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 sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting 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 does 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, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical [98 U.S. 145, 165] 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 testamentary causes and the settlement of the estates of deceased persons.
By the statute of 1 James I. (c. 11), the offence, if committed 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 significant 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 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,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. 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 evidence, 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. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government 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 [98 U.S. 145, 166] the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and 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, 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 exclusive control. This being so, the only 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 believed 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 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 exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? [98 U.S. 145, 167] To permit 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 generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that 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 was therefore knowingly committed. Ignorance 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 manslaughter, while it was said the contrary would have been the result if the child had actually 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 punishment 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 jury to the consequences of polygamy.
The passage complained of is as follows: 'I think it not improper, 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, [98 U.S. 145, 168] 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 prejudices 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 they 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 issue 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.
MR. JUSTICE FIELD. [Opinion Omitted]
NOTE.-At a subsequent day of the term a petition for a rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court. [Omitted]
Notice that the attorney for Reynolds argues that polygamy is not prohibited in the Ten Commandments. Why would he bring this up? Didn't the Constitution prohibit Congress from "endorsing" or "favoring" one religion or another? For some reason, this attorney thought that there was some connection between the Bible and the Law of the Land. Perhaps he read from the Founding Fathers:
The law given from Sinai was a civil and municipal as well as a moral and religious code. . . laws essential to the existence of men in society and most of which have been enacted by every nation which ever professed any code of laws.
Vain indeed would be the search among the writings of profane antiquity . . . to find so broad, so complete, and so solid a basis for morality as this decalogue lays down.
Letters of John Quincy Adams to His Son on the Bible and its Teachings (Auburn: James M. Alden, 1850) 61, 70-71.
But the polygamist's attorney shows himself to be somewhat slippery, by arguing that "if it be said" (and of course, it was said!) "that its prohibition is to be found in the teachings of the New Testament" (such as the verses which speak of a church leader being "the husband of one wife [1 Tim. 3:2,12; Titus 1:6]),
we know that a majority of the people of this Territory deny that the Christian law contains any such prohibition.
In other words, what the Bible objectively says is not as important as what a majority of people want it to say. We see here the first fruits of relativism.
The fact of the matter is, America's laws were based on the Bible, and the Court ruled in those terms.
[Back to opinion]
Jeffersonsays the law can "reach actions only." By what standard do we declare certain actions "right" or "lawful" and certain actions "wrong" or "illegal?" Whose morality determines this? What is the source of a person's (or legislature's) morality if not religion? [Back to opinion]
TheCourt cites "the common law." In the Holy Trinity case, this Court acknowledged that one thing that made America a "Christian nation" was the fact that Christianity was the foundation of "the common law." The Court cited a ruling by the Supreme Court of Pennsylvania [Updegraph v. The Commonwealth, 11 Serg & R. 393 (1824)] which held that
No free government now exists in the world unless where Christianity is acknowledged and is the religion of the country . . . . Christianity is part of the common law . . . . Its foundations are broad and strong and deep . . . . It is the purest system of morality . . . and only stable support of all human laws.
The Holy Trinity Court also cited the U.S. Supreme Court in the 1844 Vidal case which also cited the Updegraph case to establish that America is a Christian nation.
As Supreme Court Justice and Founder of Harvard Law School Joseph Story put it:
One of the beautiful boasts of our municipal jurisprudence is that Christianity is part of the Common Law. . . . There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations. . . . I verily believe Christianity necessary to the support of civil society.
(Life and Letters of Joseph Story, Wm.W. Story, ed., Boston: Charles C. Little and James Brown, 1851, II:8,92)
Although the Reynolds Court does not state it so clearly, it is saying that polygamy is a crime because this is a Christian nation. The Court does not recite the now-standard litany that the Christian religion is not to be "advanced," "endorsed," or "favored" above other religions (such as those which endorse polygamy).
The problem is the Court's statement of the basic issue: whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The Court does not ask whether religious belief can be accepted as a justification of an overt act made criminal by the law of God in the Bible. The battle is between the criminal act and the State. Thus phrased, the State is on its way to becoming the highest authority. This case will one day be cited to overthrow the "compelling state interest test" which guarded religious freedom from State encroachment. [return to opinion]
See also: Davis v. Beason, 133 U.S. 333 (1890)
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