THE POLAND ACT
the murders at Mountain Meadows became possible only when, in 1874,
Congress passed the Poland Act. The Act sought to eliminate the
nearly total control the Mormon Church had over Utah's justice
system. The Poland Act redefined the jurisdiction of Utah courts,
restricting the formerly powerful probate courts, which had taken no
action concerning the 1857 massacre, to their traditional
jurisdiction. The Act also eliminated the territorial marshal and
attorney, giving their duties to a U. S. marshal and U. S.
attorney. Finally, the Act opened up Utah juries to
The first grand
jury called under the new law, in September 1874, indicted Lee, Dame,
Haight, Higbee, Klingensmith, Stewart, and three other men for the
deaths of members of the Fancher Party at Mountain Meadows in 1857.
Each Utah county had a probate court presided over by an elected judge. No federal circuit court was ever established in Utah or with jurisdiction over Utah. Many litigants, especially Mormons, took their cases to the probate court rather than before the federally appointed judge of the district court. The effect was to displace the federally appointed courts with a system of local control. Congress reacted by placing the judiciary firmly under federal control. The Poland Act of 1874 (18 Stat. 253) restricted the probate courts to matters of estates and guardianship, removing all civil, chancery, and criminal jurisdiction. It gave the district courts exclusive jurisdiction for all suits over $300, and it abolished the local offices of the territorial marshal and territorial attorney.
Text of the Poland Act, as proposed:
The bill, as proposed to be amended, was read, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be "the duty of the United States marshal of the Territory of Utah, in person or by deputy, to attend all sessions of the supreme and district courts in said Territory, and to serve and execute all process and writs issued out of, and all orders, judgments, and decrees made by said courts, or by any judge thereof, unless said court or judge shall otherwise order in any particular case. All process, writs, or other papers left with said marshal, or either of his deputies, shall be. served without delay, and in the order in which they are received, upon payment or tender of his legal fees therefore; and it shall be unlawful for said marshal to demand or receive mileage for any greater distance than the actual distance by the usual routes from the place of service or execution of process, writ, or other paper, to the place of return of the same, except that when it shall be necessary to convey any person arrested by legal authority out of the county in which he is arrested, said marshal shall be entitled to mileage for the whole distance necessarily traveled in delivering the person so arrested before the court or officer ordering such arrest. Said marshal is hereby authorized to appoint as many deputies as may be necessary, each of whom shall have authority, in the name of said marshal, to perform any act with like effect and in like manner as said marshal; and the marshal shall be liable for all official acts of such deputies as if done by himself. Such appointment shall not be complete until he shall give bond to said marshal, with sureties, to be by him, approved, in the penal sum of $10,000, conditioned for the faithful discharge of his duties; and he shall also take, and subscribe the same oath prescribed by law to be taken by said marshal; and said appointment, bond, and oath shall be filed and remain in the office of the clerk of the supreme court of said territory. In. actions brought against said marshal for the misfeasance or non-fiancé of any deputy. It shall be lawful for the plaintiff, at his option, to join the said deputy and the sureties on his bond with said marshal and his sureties. Any processes, either civil or .criminal, returnable to the supreme or district courts may be served in any county by the sheriff thereof or his legal deputy, and they may also serve any other processes which may be authorized by act of the territorial Legislature.
SEC. 2. That it shall be the duty of
the United States attorney in said Territory, in person or by an
assistant, to attend
all the courts of record having jurisdiction of offenses as well under
of said Territory as of the United States, and perform the duties of
prosecuting officer in all criminal cases arising in said courts; and
hereby authorized to appoint as many assistants as may be necessary,
whom shall subscribe the same oath as is prescribed by law for said
States attorney; and the said appointment and oath shall be filed and
the office of the clerk of the supreme court of said Territory. The
SEC. 3. That there shall be held in each year two terms of the supreme court of said Territory, and four terms of each district court, at such times as the governor of the Territory may by Proclamation fix. The district courts shall have exclusive original jurisdiction in all suits or proceedings in chancery, and in all actions at law in which the sum or value of the thing in controversy shall be $300 or upward, and in all controversies where the title, possession, or boundaries of land, or mines or mining claims shall be in dispute, whatever their value, except in actions for forcible entry or forcible or unlawful detainer; and they shall have jurisdiction in suits for divorce. When a bill is filed by a woman to declare marriage or pretended marriage void, on account of a previous subsisting marriage of the defendant to another woman, the court, or judge thereof may grant such reasonable sum for alimony and counsel fees as the circumstances of the case will justify; and may likewise, by final decree, make such allowance for the maintenance of the complainant and her children by the defendant as may be just and reasonable. .And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact. Probate courts, in their respective counties, shall have jurisdiction in the settlement of the estates of decedents, and in matters of guardianship and other like matters; but otherwise they shall have no civil, chancery, or criminal jurisdiction whatever; they shall have jurisdiction of suits of divorce for statutory causes concurrently with the district courts; but any defendant in a suit for divorce, commenced in a probate court shall be entitled, after appearance and before plea or answer, to have said snit removed to the district court having jurisdiction, when said suit shall proceed in like manner as if originally commenced in said district court. All judgments and decrees heretofore rendered by the probate courts which have been executed, and the time to appeal from which has by the existing laws of said Territory expired, are hereby validated and confirmed. The jurisdiction heretofore conferred upon justices of the peace by the organic act of said Territory is extended to all cases where the debt or sum claimed shall be less· than $300. From all final judgments of justices of the peace an appeal shall be allowed to the district courts of their respective districts, in the same manner as is now provided by the laws of said Territory for appeals to the probate courts; and from the judgments of the probate courts an appeal shall lie to the district court of the district embracing the county in which such probate court is held in such cases and in such manner as the, supreme court of said Territory may; by general rules framed for that purpose, specify and designate, and such appeal shall vacate the judgment appealed from, and the case shall be tried de novo in the appellate court. Appeals may be taken from both justices and probate courts to the district court of their respective districts in cases where judgments have been heretofore rendered and remain unexecuted; but this provision shall not enlarge the time for taking an appeal beyond the periods now allowed by the existing laws of said Territory for taking appeals. Whenever the condition of the business in the district court of any district is such that the judge of the district is unable to do the same, he may request the judge of either of the other districts to assist him, and, upon such request made; the judge so requested may hold the whole or part of any term, or any branch thereof, and his acts as such judge shall be of equal force as if he were duly assigned to hold the courts in such district.
SEC. 4. That within sixty days after the
passage of this
act, and in the month of January annually thereafter, the clerk of the
court in each judicial district, and the judge of probate of the county
which the district court is next to be held, shall prepare a jury-list
which grand and petit jurors shall be drawn, to serve in the district
such district, until a new list shall be made us herein provided. Said
and probate judge shall alternately select the name of a male citizen
United States who has resided in the district for the period of six
preceding, and who can read and write in the English language; and as
the name and residence of each shall be entered upon the list, until
shall contain two hundred names, when the same shall be duly certified
clerk and probate judge; and the same shall be filed in the office of
of such district court, and a duplicate copy shall be made and
such officers, and filed in the office of said probate judge. Whenever
or petit jury is to be drawn to serve at any term of a district court,
judge of such district shall give public notice of the time and place
drawing of such jury, which shall be at least twelve days before
of such term; and on the day and at the place thus fixed, the judge of
district shall hold an open session of his court , and shall preside at
drawing of such jury; and the clerk of such court shall write the name
person on the jury-lists returned and filled in his office upon a
of paper, as nearly as practicable of the same size and form, and all
slips shall, by the clerk in open court, be placed in a covered box,
mixed and mingled; and thereupon the United States marshal, or his
shall proceed to fairly draw by lot from said box such number of names
have previously been directed by said judge; and if both a grand and a petit jury
are to be drawn, the grand jury shall be drawn first; and when the
shall have been Concluded, the clerk of the district court shall issue
a venire to the marshal or his deputy,
to summon the persons so drawn, and the same shall be duly served on
the persons so drawn at least seven days before the commencement of the
which they are to serve; and the jurors so drawn and summoned shall
the regular grand and petit juries for the term for all cases. And the
thus drawn from the box by the clerk shall not be returned to or again
in said box until a new jury-list shall be made. If during any term or
district court any additional grand or petit jurors shall be necessary,
same shall be drawn from said box by the
SEC. 5. That there shall be appointed by the governor of said Territory one or more notaries public for each organized county, whose term of office shall be two years and until their successors shall be appointed and qualified . The act of the Legislative Assembly of the Territory of Utah entitled "An act concerning notaries public," approved January, 17, 1866, is hereby approved, except the first section thereof, which is hereby disapproved: Provided, That wherever in said act the words “probate judge" or "clerk of the probate court" are used, the words “secretary of the Territory" shall be substituted.
SEC. 6. That the supreme court of said Territory is hereby authorized to appoint commissioners of said court, who shall have and exercise all the duties of commissioners of the circuit courts of the United States, and to take acknowledgments of bail, &c.; and, in addition, they shall have the same authority as examining and committing magistrates in all cases arising under the laws of said Territory as is now possessed by justices of the peace in said Territory.
SEC. 7. That the common law of England, as the same is defined and modified by the courts of last resort in those States of the United States where the common law prevails, shall be the rule of decision in all the courts of said Territory so far as it is not repugnant to or inconsistent with the Constitution and laws of the United States and the existing statutes of Raid territory.
SEC. 8 . That the act of the
territorial Legislature of the
Mr. Speaker, I shall take but a very few moments in explaining this bill. I should be very glad to give more time and have a more extended discussion of it than the condition of business in the House will at this time allow.
The bill that has been presented by
the Judiciary Committee is mainly remarkable
for its moderation when compared with previous bills that have
been before the House upon this vexed subject of the
building of the Pacific Railroad and since the discovery of mines in
Mr. CROUNSE. Will the gentleman allow me a single remark?
Now, Mr. Speaker, the object of this
bill is to stop this proceeding, and to put the legal machinery in
that Territory: That is the whole scope and purpose of the bill; and as
but a few moments, I will call attention briefly to US provisions.
It provides in the first section for the exercise of the duties and
The second section of the bill provides for the performance of duty by the United States district, attorney, who is authorized to appoint assistants for that purpose; but to this also we have added, as in the first section, a provision that the territorial Legislature may provide for the appointment of a prosecuting attorney in every county who may prosecute for all offenses under the laws of the Territory; and if any of those cases go by appeal, or otherwise, into the district court, this local attorney may be associated in the prosecution of those cases in that court.
The third section relates to the respective jurisdictions of the courts and giving jurisdiction to the district courts which are held by the judges appointed by the President, and taking away the jurisdiction of the probate courts; that is, confining the jurisdiction of these probate courts to the proper business of the settlement of estates.
And I think the gentleman who sits here as Delegate of that Territory knows as well as I know the Supreme Court have agreed upon a decision, and it was only deferred in consequence of the pendency of this bill, wherein they have decided the territorial Legislature had no authority to confer this kind of jurisdiction which these probate courts have heretofore exercised ; that the conferring of general, legal, civil, and criminal jurisdiction upon the courts was a usurpation and their acts are void .. We provide in this bill for taking away that jurisdiction from these probate courts, but at the same time we have taken care to validate the proceedings which have become executed.
The fourth section, Mr. Speaker,
provides for the selection of jurors, and upon this we
have had great difficulty, the
bill, as originally
reported from the
committee, contains the provision offered by the gentleman from
We have then provided that the drawing of the jurors shall be in open court; shall be public, so everybody may have an opportunity to see it is fairly done. The majority of the Judiciary Committee thought this provision was one nobody could complain of·one which would be entirely fair to all parties.
But, in addition to that, we have it provision that in any prosecution under the law of Congress .against polygamy, the fact of a person's practicing polygamy or believing in the rightfulness of it should be good cause of challenge to his sitting on a jury to try that sort of offense…
Mr. CROUNSE. Mr. Speaker, as a member of the Committee on the Territories I have had some opportunity to consider the questions involved in this bill, and I did hope that the opportunity would present itself when I might present to the House some of the considerations which are here involved and which relate to the details of this bill. In the consideration of a question so important as this the House cannot afford to be swayed or governed by passion or prejudice. Standing up here in defense of what I believe to be a proper system of law for the government of this Territory, I wish .to disclaim in advance any disposition to defend the system of polygamy. I am not here for that purpose, but I am here to join hands with all who wish to put down this system by proper and legitimate means.
Sir, we should not confound this
question of polygamy with the question of framing a proper system of
Upon this question in relation to the
government of the
Mr. CROUNSE. I accept the apology, but the facts are there and the inference can be drawn. When I wanted to make an inquiry and to correct a misstatement, at that time the gentleman could not tolerate a question; no, sir; not a bit of it. But when others propounded inquiries, then there was opportunity, and a disposition to allow them to do so.
Now, in order to make this bill
palatable to the House, if I may use the term, it must be prefaced with
imaginary grievances, or the statement of a condition of affairs which
does not exist. It becomes necessary to refer away back to the early
this people, when they were isolated, away off, and when they had
inflicted upon them
The gentleman says that while the
Now, that they have a right to do. If
that is denied them, then one of the first principles of a republican
government is gone and wiped out. When a people in a Territory cannot
accorded the right to enact their own laws, those that relate to
long as they do not conflict with the Constitution of the United
States, and if
they cannot select .their own offices to execute those laws, then I say
striking down the very first principles of American liberty. You are
without representation, you are demanding obedience to laws which they
voice in making, and you foist upon them officers to execute the laws
responsibility to the people governed. It is a proposition unheard
history of American law-making of jurisprudence…. I tell you, Sir, it
do for this Congress to assume a, mock regard for particular laws while
unmindful of others. Let every man turn his sight inward; let him stand
the forum of his own conscience; let him ask himself whether he has any
religious convictions at all. Men who have none at all are perhaps too
be intolerant toward those who have. I say that while I deplore the
As I wish to be sparing of the time of
the gentleman from
Mr. ELDREDGE. The gentleman will allow
me to suggest to him that the marshals selected by the local authorities of
Mr. CROUNSE. Precisely That is what I wish to have understood by the House; that we are asked to enact a law which is in defiance of all precedents in our legislation, and for no sufficient reason; because the system of polygamy, if it is to be assailed at all, is to be assailed under the laws of the United States. Congress should not, and I say cannot in consistency with the principles underlying our institutions, enact laws which will thrust upon that people a set of Government officials responsible to no one except the Government here at Washington.
I say that this people does not
deserve such treatment. Aside from the question of their religion they
entitled to the same rights, immunities, and privileges which would be
in behalf of any other people. The bill as first brought before the
Committee contained .the clause
my colleague on the committee from
Mr. McKEE. How are they selected now in other States and Territories?
Mr. POTTER. In most of the States and
Territories by the local officers, I believe; by the sheriffs of the
in very many of the States, and-by the territorial marshals, I believe,
the Territories except
Mr. McKEE. In most of the States they are selected by the marshal. Do you call that packing a jury?
Mr. POTTER. You are speaking of the juries of the Federal courts of the States, where there is no such division among the people. In the South it may be the marshal can now pack juries.
present bill provides, Mr. Speaker, that the juries shall be chosen
the judge of probate, that is to say by the county judge or local
and the other half by the Federal authority. This
perhaps is as fair under
the circumstances as it is practicable to make a jury for
My difficulty with the existing bill is this: on page 10 the House will see that it is provided that in all prosecutions for adultery, bigamy, or polygamy no person shall be entitled to serve on the jury who has a belief in polygamy. As three-fourths of the men who reside in the Territory now do believe in polygamy and practice it, the result will be they will all be absolutely excluded from the juries in such cases, and the jury in all prosecutions for bigamy or polygamy will therefore necessarily be made up of persons who are non-Mormons. I do not see why under such a provision every Mormon cannot be convicted of polygamy, for undoubtedly they are guilty under the Federal statute passed years ago. I do not see, I say, why they all may not be, the whole Mormon people, convicted and locked up under this provision and the Territory be thus left bare to the non-Mormons to take possession of and keep. If I am told that a whole community cannot be punished for violating a law, then the answer indicates the needlessness of passing laws which cannot be enforced. Many years ago we passed a law against polygamy which we never have enforced. Here now is another law which, if it can be enforced, will have the effect of driving these people out of the Territory, leaving the lands to those there who are non-Mormons, and which we propose to enforce by giving to the non-Mormons the control of the juries that may sit upon that question. If polygamy could be broken up by mere law it would have been done before this. At any rate I shrink from doing it by a method which is not calculated to insure that impartial trial by jury which the Constitution guarantees to every citizen.
I have felt, besides, sir, that it
could not be long in any event before these people would have to move
the railways coming into the country would introduce into it not only
people but new Ideas. In a far-off place like the
Mr. E. R. HOAR. I desire to ask the
Mr. POTTER. The distinguished
gentleman from Massachusetts, formerly the Attorney-General of the
States, and especially familiar with the laws and statutes of the
States, should address this question to the gentleman from Vermont
this bill, who can answer it better than I can. He must bear in mind,
that -this Territory was originally a part of
I do not, Mr. Speaker,·so much object
to the other provisions of this bill; my main objection is to the
moved by the gentleman from Pennsylvania, and to that provision in the
reported that in all prosecutions for polygamy no man shall be a juror
believes in or practices polygamy. I understand, however, that my
Mr. CANNON, of
If these be the reasons for this
legislation, then the same reasons exist in favor of similar
the Territories of the
They also have probate courts, and in
some instances possessing quite an extensive jurisdiction; sufficiently
extensive to be open to the same objection that is made to the
the court in the
One of my objections to the bill under consideration is that it is local in its application. If there be any reason for the enactment of a law like this, the same reason exist in regard to all the Territories as well as Utah.
It has been said that in the
To return to the probate courts; was it wise and proper for the Legislative Assembly of Utah to confer upon the probate courts the jurisdiction complained of?
It will be remembered that what is now
the State of
Some of the judges appointed in years past to the first and second districts never saw the places appointed for holding their courts. Recently the judges of these districts have held courts regularly in their districts, and the judge of the first district has a residence in his district, and probably the judge of the second in his also; but of this I am not certain. If he has, he is, I believe, the first judge who has resided there. The probate courts had therefore of necessity to be endowed with extensive jurisdiction or the people would have been compelled, to punish crime, to have had recourse to lynch law. But supposing these courts had been in regular session; Saint George, a city of two thousand inhabitants, possessing large agricultural and manufacturing interests, is situated in the southern portion of the Territory in the second judicial district, and one hundred and twenty miles from Beaver, where the court is held; the facilities for traveling would enable a citizen of Saint George to arrive at Beaver in about three days. Would it not, under these circumstances, be highly inconvenient for him to transact any business in the district court? A citizen of Boston can travel to Chicago quicker and cheaper and more comfortably than a citizen of Saint George can travel from his home to Beaver; yet the citizen of Boston would consider it something of a hardship should he be obliged to transact all his business at Chicago, and he would not be considered unreasonable should he ask for some
Local tribunal other towns in the Territory are similarly situated to that of Saint George, and; without local courts of some kind they are wholly without protection by judicial authority in property or person. Under these circumstances, can it be said that the Legislature of Utah acted unwisely in conferring jurisdiction on the probate courts? Would they not have fallen far short of their duty had they neglected to throw around their infant settlements, so widely separated, such protection as the probate courts have afforded?
So far as the administration of justice in these courts is concerned, I have had forwarded to me from the Territory a statement of the cases which have been tried by the ordinary juries of the Territory in the probate court of Salt Lake County for several years. Out of a list of eighty-four civil cases, to which Mormons and non-Mormons were parties, fifty-nine were decided, in favor of non-Mormons and dissenting Mormons, and twenty-five only decided in favor of Mormons, showing how fair the administration of justice has been in that Territory by juries and the probate courts. The parties to sixty-two cases were non-Mormons and dissenting Mormons; and yet it is urged as a complaint against these courts that the judges are Mormon bishops, &c.
Sir, there is probably no officer in
Sir, I repeat there are no reasons,
unless they be religious, why there should be special legislation of
Sir, you doubtless remember that at
the session of the Legislature of Utah held some few months ago a
was adopted asking Congress to appoint a congressional commission to
Mr. McKEE. May I ask the gentleman if of those members of the Legislature who signed the petition about the violation of the laws all but three are polygamists and living now in violation of the law?
Mr. CANNON, of
Mr. McKEE. Is not that true? I have the list here.
Mr. CANNON, of
Mr. Speaker, who are the men who have
brought this bill to this house and asked for its passage?
Is this the product of the wisdom of the
Committee on the Judiciary? No, sir; this bill is but
one of seven or eight
bills which have been brought to
Since the commencement of this
Congress we have had the
Mr. CANNON, of
Mr. POLAND Then he claimed what was not true.
Mr. CANNON, of
But it may be said, "If these
capitalists and other influential people of
It will be observed also that the
parties who are here urging the passage of this bill are those who are
interested in its success. If this bill should become a law, the office
United States district attorney in Utah would be worth as much as that
President of the United States; the office of marshal of' Utah
be equally valuable. What does this bill do? In the first section it
away twenty-one sheriffs, and substitutes for them a
With the feeling there is on this
subject and with such a district attorney as we have now, who has shown
his designs are, we can readily understand what the fate of the Mormons
be if this bill should be made a law, especially when they are not
they even believe in the rightfulness of polygamy, to sit upon a jury,
general reputation is made evidence in criminal prosecutions. Let an
unprejudiced jurist-examine this bill, especially if he has had
the Territories, and he cannot fail to perceive how dangerous and
all republican government it is. I cannot believe that there is a
this House who would vote for such a bill to be enforced against any
people than those who reside in
[Here the hammer fell.]
The SPEAKER. The forty-five minutes
allowed to the gentleman from
Mr. CANNON, of
It is the first time that I have appealed to the House for any courtesy of this kind.
SEVERAL MEMBERS. Go on.
The SPEAKER. How much time does the
Mr. CANNON, of
The SPEAKER. If the gentleman from
Mr. CANNON, of
The SPEAKER. The gentleman from
Mr. CANNON, of
It is against this that my
constituents protest. They wish the majority to govern. They govern
why not in
Sir, it is but another scheme for robbing that people, and it is hoped it can be done under the guise of law. Members should hesitate before they cast their votes for such a bill. Examine well what the results of such legislation are likely to be. Let members ask themselves how they would like such legislation enacted for them if they were objectionable for religion or any other reason. Put yourself, sir, in the condition of the Mormons, and ask yourself how you would like to have such a law as this passed against you.
It may be said the Mormons are heretics, but this does not justify Congress in making this bill a law. Such legislation never, in the history of the world, put down heresy. If such legislation can, then all history belies itself, for history bears testimony that no such measure as is proposed in this bill ever was successful in accomplishing such an object. It did not in the case of the Huguenots; it did not in the case of the Puritans; it has not in any case, and it never will, never, while the earth stands and human nature possesses its present features, unless, indeed, you stamp a religion out by destroying all its believers.
What is now
Mr. Speaker, there was no talk then
about enacting laws for the
But it is said that the courts are
locked up and cannot execute, the laws because of the difficulty of
jurors. Sir, that is no more the case now than it has been for a score
years. Under the present laws of
The question as to which is the
rightful officer of the courts under the laws of the Territory—the
States district attorney or the attorney-general of the Territory—has
submitted to the United States Supreme Court, and the decision has been
favor of the officer created by territorial statute. The case of the
States Marshal vs. The Territorial Marshal is
analogous one. In two instances the Supreme Court of the
The theory upon which the various government for portions of the territory of the United States have been organized has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of national authority, and with certain fundamental principles established by Congress. As early as 1784 an ordinance was adopted by the Congress of the Confederation providing for the division of all the territory ceded or to be ceded into States, with boundaries ascertained by the ordinance. These States were severally authorized to adopt for their temporary government the constitutional laws of anyone of the States, and provision-was made for their ultimate admission by Delegates into the Congress of the United States; We thus find the first plan for the establishment of governments in the Territories authorized the adoption of State governments from the start, and committed all matters of internal legislation to the discretion of the inhabitants, unrestricted otherwise .than by the State constitution originally adopted by them.
the language used by the Chief Justice in rendering this decision,
reversed, the proceedings of the judge of the third judicial district
I find that I must hurry on. In the short time allowed me I find it impossible to make explanations which should be made to give a correct idea of affairs in the Territory. In the third section of this bill I find this provision:
And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact.
In this connection I call attention to the decision of the United States Supreme Court in the case of Cummings vs. The State of Missouri. It will be found in 4 Wallace, and I will read an extract from pages 325 and 326
By an ex post facto law is meant one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed, or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then required.
This bill proposes to change the rule of evidence, and I submit it comes in conflict with this decision of the Supreme Court in the case I have cited.
Sir, I know the prejudices which exist on this Mormon question.
I know that many men are ready to do anything that may have the effect to destroy what is called Mormonism. I implore members to reflect and not act hastily upon this bill. Such legislation will not destroy that system. Its believers have suffered themselves to be driven from their homes time and time again for their religion. They cannot be convinced by the bayonet; they cannot be convinced by
Mr. WARD, of
It is true, Mr. Speaker, that when this people, who had been isolated among the vast wildernesses of Utah, were reached by the tide of emigration and civilization sweeping across the continent, and which I hope shall continue to sweep against any form of despotism, any form of religion or faith that attempts to set itself against it—when that people was reached by this tide, of course a conflict sprang up. ·While those people were there by themselves they needed no legislation by Congress, as their representative has said. When our people went out there, as they have gone in great numbers, legislation became necessary. The people who have gone out from among us are developing the resources of that country and are building up there a civilization which we here believe to be better than that of the Mormons, notwithstanding the argument which has been made by the Delegate from Utah in relation to their peculiar faith The population in that Territory is to-day mixed. About ninety thousand of the one hundred and fifteen to one hundred and twenty thousand people of that Territory are followers of the "prophet" and this new religion, worshipers of this to me "unknown god;" for the god that sacrifices women to the lusts of men under the form of a plurality of wives is a god that I do not worship. I belong to no particular faith; I espouse no particular form of religion; I would not in any way-impose unnecessary or improper burdens on that people or any other; but when they stand up in the light of this age and tell me that their religion is better than mine, that their faith is better than mine, that their civilization is better than mine, that their institutions are entitled to protection beyond what our institutions are entitled to, I say "Hands off; I will not oppress you, but there must be fair play."
What are the provisions of this bill? Look at the section which provides for drawing juries. I ask any fair-minded man whether he can object to it, except for the reason given by my colleague on the committee, the gentleman from Pennsylvania, [Mr. CESSNA,] that it contains a degree of sickly sentimentality, a silly dread of touching this peculiar institution represented upon this floor by the gentleman from Utah, rather than an outspoken, honest disapproval of the practices of his church, with a provision for forming juries according to the rules now existing and in force in almost every State and Territory throughout .this broad land?
What does it provide?
So far from there being any packing of juries against Mormons, it is a
I should object to it myself for that reason if I objected to it at
all—it is the fact
that it is almost a packing of juries against ourselves. When I say
"ourselves," I mean those who do not believe in blood atonement; I
mean those who do not believe in the order of Enoch; I mean those who
believe in this Latter-Day nonsense, as I see fit to call it; I mean
do not believe in the sacrifice of one-half of creation to the lusts
enormities of the other half. I do not believe in these things myself,
Speaker. I fully accord freedom to worship God and freedom of religious
but I remember in history the enormous crimes which have been
the name of religion. It was in the name of religion and it is in the
religion that the widow mounts the funeral pyre in
I do not speak to this Delegate from
What does this bill do? It does simply this and nothing more: It provides that every probate judge in the Territory of Utah—although every probate judge there is a Mormon bishop—that each one of them shall be appointed as one of the two men who shall draw those who are to be put into the jury-box; that each judge in his own county shall be one of two commissioners to select the list from which jurors are to be drawn.
Now, gentlemen, away with your sentimentality, your fearful dread of imposing something unusual upon these Mormons. Look at It! I ask gentlemen round about me who are afraid of some infraction of the rights of freemen, of the right of trial by jury, of some right and some privilege of American citizenship, to look and see if we do not give these Mormons every right they can justly claim? But must they draw the juries and. run the courts and do all this business in their own way? That practically is the issue presented to you. I wish that they like their neighbors shall follow the ways of civilization. I do not want you to oppress them, and this bill does not do it. I do not want to wrong them, and you do not by this law. I insist. those who believe as I do—especially when I remember there are written in the laws of the country strong statutes against the crime of polygamy, especially when I remember the practices of those whom this Delegate represents here are such as to shock almost everybody throughout this civilized land—I insist my people, our people, the Gentiles of Utah, shall have their rights also, and be permitted to be heard in the formation of juries and in the administration of the laws.
Now, Mr. Speaker, in the few moments we have to discuss a question of this kind, with such an uneasy audience as one usually addresses here, it is mighty hard to say anything when there is so much to say. I take it I have made one point at least understood by gentlemen here. I trust I have. I might go further, (and I must go a little further,) and say if I were to go outside of what actually appears in the record here I might tell of the enormities of the wicked practices, the murders, the outrages committed in Utah, which would startle everybody.
But let me come back to what this law
does. What are we doing to these people? We provide in trials by jury
manner in which the jurors shall be drawn. What next? That the courts
What other thing do we do? We provide that it shall be just cause for challenge of a juror in a trial for bigamy or polygamy if the juror believes in or practices polygamy. Do you allow a man anywhere in your courts to sit as a juror in a trial for robbery who believes in or practices robbery? Do you allow a man to sit as a juror in a case of murder who believes in or practices murder? Do you allow a man to sit as a juror in a trial for any crime who believes in or commits that crime? Would you allow a man to sit as a juror on the trial of another man charged with crimes which the juror practices? Sir, such a thing has not been heard of until, with unblushing effrontery, this representative of a deluded people, who worship a strange god, stands up in the American Congress and demands that it shall be allowed. Mr. Speaker, this is carrying the thing- too far, and we ought to forbid it, and can forbid it without any infraction of the rights of American citizens.
I have said almost all I desire to say, and there are but one or two· other matters to which I desire to call the attention of the House. We do not abolish the sheriffs; we do not abolish the county courts; we leave the people of the Territory free to regulate their own institutions in all local and municipal matters. We do not propose to interfere with them in any way. The United States Government has dealt with these Mormons ·with the utmost leniency and indulgence.
We find a man here to-day representing these people who has committed the outrage of violating the law of the land upon the subject of marriage, who is the husband of more than one wife. It seems to be expected by this high priest of the Mormon Church that you should recognize the right of his people to commit this crime in the name of religion. Sir, when it comes to the doctrine of blood atonement and. human sacrifice, I will not for one tolerate such practices in the name of religion. These people may believe what they please, and I will believe what I please; but I insist that their practices shall be consistent with law and civilization.
This bill in no measure or in any
particular impairs the rights of this peculiar people. Reference has
to the fact that the
When you come to compare the
provisions of that bill with the bill which has been reported from the
Committee on the Judiciary at this session and which is now before the
it will hardly be claimed that I should be entitled to the paternity of
have no special hostility against this peculiar people, the Mormons.
fact is undeniable that these people are as directly hostile to the
Mr. CANNON, of
Mr. CANNON, of
1862; but it is a
knows that that law has been unblushingly disobeyed, that the people
never pretended to obey it and that they have openly and avowedly
And the gentleman says that nobody has been prosecuted. Why not? For
want of such a bill as we propose now to pass. It was because their
laws were such that no man but a polygamist or one who believed in
ever allowed to enter the jury-box. Every
Mr. CANNON, of
Mr. ELDREDGE called for the yeas and nays.
The yeas and nays were ordered.
The question was taken; and there were-yeas 159, nays 55, and not voting 75; as follows…Legislative Debate on the Poland Act in the Senate (June 23, 1874):
I now move that we proceed to the consideration of the
Mr. SPRAGUE. We have five minutes yet for the Calendar.
Mr. FRELINGHUYSEN. I have this statement to make-
The PRESIDENT pro tempore. The bill will come up in six minutes without any notice.
I have the floor now and I wish to make my statement. The bill as it
presented to the Senate will be free from all objections by anyone who
have order and law in
And now I want further to say, that if any member of the Senate thinks that the amendments which I will propose do not render the bill unobjectionable, I will accept any amendments in reference to polygamy and bigamy, so as just to have a bill which establishes law in that Territory as in every other, and with those modifications I think the bill can be passed in ten minutes.
Mr. SARGENT. I
most earnestly with the Senator that there may be good order in the
think the proposition the Senator makes to eliminate from the bill
relating to a disturbing course there, which he mentioned, may
passage of the hill. I am afraid, and have been for some years past, on
of the high condition of fanaticism of certain people in that
we might have a civil war there. I know they will go to the wall if
war comes. I know that their fertile fields will be plowed with the
of war, and their homes will be devastated that the thrift, tile
thrift which now exists throughout the Territory will cease and there
desolation, because they cannot contend against the Government of
I further think
that the progress of time, the influx of gentiles is wearing away that
prejudice, religious or otherwise, on the part of the people of
Mr. LOGAN. It, seems
to, be almost impossible to have any legist ion in reference to
certain matters connected with the
The PRESIDENT pro tempore. The Chair thinks it is not in order to make such references to the other House.
Mr. LOGAN. Then I withdraw what I said in reference to the House, but I do not in reference to the polygamist. I appeal to Senators on this floor, I know many of us have been reminded during this, session that the republican platform had something to do with legislation; I do not think platforms have anything to do with legislation; but inasmuch as I have been reminded of it, let me remind Senators here that time and again you have announced to the world that this "twin relic of barbarism" should be extirpated from this country; and yet in the last session of Congress, and now, when this bill is brought forward to give power to the courts to administer justice in that Territory the same as it is elsewhere, in conformity with the law, we find men ready in every possible way to thwart legislation for the purpose of allowing the courts to administer justice in that Territory.
Why is it? Has polygamy stretched out its arm until it fastens its power on every man in this Chamber? Is it true that the head of the Mormon Church has more power in Congress than the morals of the whole country? Is it true that the head of that theocracy, after boasting that he could control Congress is able to say to the country that Congress is afraid to deal with him?
Sir, these are
facts. , The country will ask us why it is that we are afraid to deal
polygamy; why we are afraid to give the courts the power to deal with
we are afraid to legislate in the direction of Mormonism; why we
are afraid of
the power of the head of the
Mr. TIPTON: Mr. President, I don not understand that it is any evidence of cowardice on the part of republican members of the Senate that they have not acted affirmatively on this question of Utah and her institutions. If that is to be taken as evidence of cowardice, then I say that there is equal evidence of cowardice on another question, not so far as the Senate is concerned; but we are told that the honorable Senator, then, how does it come that the platform of the party also requires something on the question of civil rights, and yet the bill that was passed by the senate has not yet become a law, as I understand, while there is power enough in the Congress of the United States belonging to that party to make it a law?
Mr. LOGAN. Will the Senator allow me a word tight there?
Mr. TIPTON. Yes, Sir.
Mr. LOGAN. In reference to the platform, I said that I asked no legislation on account of any platform, but that it was thrown in the teeth of certain Senators here that platforms said certain things, and I only retorted on that by reference to legislation on this subject.
Mr. TIPTON. I
undoubtedly labored under a misapprehension; and as time is so
accept the apology of the Senator from
I move that the Senate proceed to the consideration of the
The motion was
agreed to; and the Senate, as in Committee of the
Whole, proceeded to consider the
bill (H. R. No. 3097) in relation to courts and judicial officers in
The Committee on the Judiciary proposed to amend the bill by striking our section 7, in the following words:
Sec.7. That the common-law of England, as the same is defined and modified by the courts of last resort in those States of the United States where the common law prevails, shall be the rule of decision in all the courts of said Territory so far as it is not pregnant to or inconsistent with the Constitution and laws of the United States and the existing statutes of said Territory.
Mr. FRELINGHUYSEN. I offer an amendment to come on page 6, in the sixty-third line, after the word “appeals”.
Mr. BAYARD. Is the seventh section stricken out? That seems to me a most innocent-looking section.
FRELINGHUYSEN. I would say to the
OFFICER. (Mr. EDMUNDS in the
chair.) The amendment of the Senator
The Chief Clerk. On page 6, in line 63, after the word “appeals”, it is proposed to insert:
A writ of error
from the Supreme Court of the
The amendment was agreed to.
Mr. FRELINGHUYSEN. There were a number of amendments which I proposed to make to this bill that do not go as far as some amendments which those who have been opposed to the bill propose to make, and therefore I will hear what amendments they desire to make.
Mr. SARGENT. On page 4, section 3, line 12, I move to strike out all after the word “divorce” down to and including the whole of line 28, on page 8.
The Chief Clerk read the words to be stricken out, as follows:
When a bill is filed by a woman to declare a marriage or pretended marriage void, on account of a previous subsisting marriage of the defendant to another woman, the court or judge thereof may grant such reasonable sum for alimony and counsel fees as the circumstances of the case will justify; and may likewise, her children by the defendant as may be just and reasonable. And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact.
Mr. FRELINGHUYSEN. I intended to modify that part of the bill by making it apply only to the future; but under the view which is taken by those who are opposed to the bill, I submit it to the judgment of the Senate without making any opposition.
The amendment was agreed to.
Mr. SARGENT. On page 8 after the word "challenges," in line 53, of section 4, I move to strike out all down to and including the word "same" in line 57. The words to be stricken out are:
And in the trial of any prosecution for adultery, bigamy, or polygamy, it shall be a good cause of principal challenge to any juror that he practices polygamy, or that he believes in the rightfulness of the same.
It had been my purpose to restrict that provision to future crimes. It
however, by those who are opposed to the bill that it must be taken out
bill entirely, and rather than that the bill should fail and that there
be no law in
The amendment was agreed to.
Mr. SARGENT. I have one other amendment, and it is the last. I am obliged to the Senator for his courtesy. On page 8, after the word "challenges," in line 53, I wish to insert “except in Capital cases, where the prosecution shall be allowed five and the defense fifteen challenges."
When a man is being
tried for his life, three challenges are rather limited. I think there
State in the
Mr. FRELINGHUYSEN. I move to amend that amendment so that the prosecution and defense each shall have fifteen, if that is the number. They ought to have the same.
Mr. SARGENT. That never is so under the law I ever heard of.
Mr. FRELINGHUYSEN. 0h, yes.
Mr. SARGENT. I do not know that there is any especial objection to the prosecution having fifteen. The main point is that the defense shall have fifteen. I will assent to that modification, so that it shall be fifteen.
OFFICER. The amendment of the Senator from
The amendment was agreed to.
Mr. INGALLS. I offer the following as an additional section to the bill:
That in all cases in which any person was deprived of his or her property in the Territory of Utah prior to the year 1860 by the action of the Mormons, or who before that time was forced to leave the Territory in consequence of the hostility of the Mormons, and whose property was taken, used, disposed of, or appropriated by the said Mormons, or who suffered any deprivation of property or personal wrong at the hands of said Mormons, he or she, or his or her heirs or legal representatives shall have the right the individual Mormons, or against those who then had control of the Territory; or they may sue for and recover the identical property , real, personal, or mixed, of which the original party was deprived as aforesaid, the same in all respects as if the suit had been brought at the time the wrongs were committed: Provided, That such suits shall be brought in the proper courts within three years from this date.
It is well known, Mr. President that in the disturbances in this Territory prior to the year 1860 a large number of people were expelled and their property confiscated and otherwise disposed of. Since that time there have been no courts to which parties could resort for the enforcement of their rights or the redress of their wrongs, and by lapse of time now that the courts are established they will be barred. The intention of this section is simply to remove the bar of the statute of limitations which has been enforced by the act of the Mormons themselves and to allow parties to sue in the courts for the recovery of their property or for the redress of their wrongs.
Mr. SARGENT. Will the Senator state what the statute of limitations in the Territory of Utah is?
Mr. INGALLS. I do not know what it is.
Mr. SARGENT. I think I am very reliably informed that there is no statute of limitations at all in the Territory of Utah. In that case the amendment is entirely unnecessary. It raises a great many questions that I think would be necessary to be considered by the Senate. The amendment cannot pass without discussion. It embraces too many propositions of a novel character. There is no necessity for it, for the reason I have mentioned. I do not think any Senator can controvert the proposition which I make, that there is no statute of limitations, and has not been, in the Territory of Utah. That would dispose of any necessity for the amendment, and would answer the reason which is given by the Senator himself. The proposition itself, however, is of very doubtful character. It may be a question whether under it old hatreds will not be stirred up, whether on false pretensions persons may not be persecuted who are entirely innocent, and whether persons who are not at all responsible for the actions complained of may be held liable for them. If I understood the reading of the amendment it provides that anybody who had control in Utah in the ordinary sense, who held any office of power there, should be responsible for the acts of anyone, no matter who, that was lawless in any part of the Territory extending for years back ..
Certainly provisions of this kind ought not to be incorporated in this bill. If there was any necessity for anything of the kind, if anybody complained that the courts of Utah which are opened by the bill have not been open all the time so that he could begin a suit, or that he is prevented from so doing by any statute of limitations, then we might give it a respectful hearing; but it will take too much time to Justify us in adopting this amendment in the loose manner in which it is drawn.
Mr. INGALLS. It is a matter of public notoriety that the courts in Utah have been closed during the period to which the amendment refers, and the bill that is now under consideration is for the express purpose of providing courts in Utah by which these questions may be tried. So far as the questions involved in the amendment are concerned, I would state to the Senator from California that they are neither numerous nor novel. It is simply and purely a. question whether the bar of the statute of limitations shall be removed as against the persons by whom these crimes were committed; and the difficulty has been that the courts having been closed there has been no forum, no tribunal to which those parties could apply for redress. It appears to me that the amendment is so humane, it is so just, it is so in accordance with all the principles 'of law that them ought to be no discussion whatever in the Senate upon it. It should be adopted without controversy.
Mr. THURMAN. I must confess my surprise that such an amendment as this is pressed on this bill, and I should be more surprised were it not that I have a very firm conviction that one of the great objects of this bill, if not the greatest object of it, is to stir up litigation whereby certain gentlemen of the profession ill Utah may make money. I believe that but for that special interest of stirring up litigation in that Territory, we should .hear nothing of this bill.
We hear a great deal about a failure of the courts there and of a want of courts. If there is want of courts there, it is the want of the officials. There is law enough for courts now; but it seems that some gentlemen must have an act passed that shall give rise to litigation in Utah; and here is a proposition to go back to 1830, to go back fourteen years; to stir up suits for assaults and batteries, for trespass, and the like, suits that in every State of this Union that has a civil node are banned in one or two years to go back and take them up and revive the causes of action against not simply the wrong-doers, but to create a cause of action against those who were in the government of the Territory whether they were the wrongdoers or not; to revive actions absolutely banned. Where does the Senator get his authority to do that, I should like to know?
Mr. INGALLS. The Senator, certainly, as a lawyer, must be familiar with the fact that if the Mormons themselves have kept the courts closed and refused parties the forum in which these matters can be tried when we now attempt to institute courts and provide for the administration of justice, these claims ought certainly to be sometimes tried and heard.
Mr. THURMAN. It will not do to say that the Mormons have refused a forum. Ever since 1856 there have been courts of the United States in that Territory, I believe before 1856; courts maintained by the power of the General Government and competent to afford redress to anybody who was wronged in that Territory. This proposition therefore is, as I said before, to revive causes of action that are absolutely barred; and I once more demand of the Senator to know where he finds authority to do such a thing as that? He has no more right to revive a cause of action where the bar has become complete; than there is to legislate that his house shall become my property. You may before the bar becomes complete, in a case of the statute of limitations, extend that act; but after the bar of the statute becomes complete the Legislature has no power to revive that cause of action.
Mr. INGALLS. Does not the Senator admit the fact that the statute of limitations never runs against fraud?
Mr. THURMAN. I do not admit any such thing.
Mr. INGALLS. It has been established by the Supreme Court of the United States repeatedly.
Mr. THURMAN. I do not admit any such thing as that the statute of limitations does not run against fraud. It runs against many cases where there is fraud, actions of deceit, actions for obtaining money by false pretenses, and a vast variety of cases.
But, sir, that is not the question. The Senators amendment goes to everything; it goes to the question of an action of ejectment nor real estate forsooth when it is as well-settled law in this country as anything can be settled that where the bar of the statute of limitations is complete in respect to real estate, it operates to divest the title of him who has been out of possession and to vest title in him who has had the possession required by the statute. You propose to take a man's property, which is his as much as if he held it by patent from the United States, and to take it by an act of Congress! Surely sir, it cannot be necessary to back against such a proposition as this amendment unless we are prepared to stir up the very worst state of things that can exist in any country-a universal litigation from one end of it to the other, and that with a feeling on the part of nine-tenths of the people of that Territory that this litigation is part of a persecution they are to endure, and endure perhaps even to the death.
Mr. FRELINGHUYSEN. Mr. President, I shall vote against this amendment. There are a great many amendments which have been made to this bill which I have agreed to, not because I thought they ought to be made, but because by reason of the situation of the bill I do not think it is wise when we are within two hours of the end of the session to introduce on this bill new matter which has nothing to do with the great object we have in establishing law in that Territory; and therefore I shall vote against the amendment.
The PRESIDENT pro tempore. The question is on the amendment of the Senator from Kansas.
The amendment was rejected.
The bill was reported to the Senate as amended, and the amendments made as in Committee of the whole were concurred in.
The amendments were ordered to be engrossed and the bill to be read a third time.
The bill was read the third time.
Mr. SPRAGUE. I ask for the yeas and nays on the passage of the bill.
The yeas and nays were not ordered.
The bill was passed