Show TEST OATH supreme supreme court of the united state no 1261 october term terna 1889 samuel D davis appellant vs JEE G beason sheriff of onelda oneida C dunty county idaho territory appeal fr from am the tard rd judicial district distri ct of t pe territory of idaho DEI delineation MEATION april 1889 the appellant samuel D davis was indicted in the district court ot of the third judicial district of the territory of idaho in the county of onelda oneida in connection with divers persons persona named and divers other persons whose names are unknown to the grand jury for a conspiracy to unlawfully pervert and obstruct the due administration of the laws of the territory in this that they would unlawfully procure themselves to be admitted to registration as electors of said county ot of oneida for the general election then next to acou r I 1 n that cou county nty w when hen toey were not entitled to be admitted to such registration by appear ing fig before the respective registrars of the election precincts in which they resided and taking THE TEST OATH presented by the statute of the state in suke substance tance as follows 1 I do wear abear or affirm that I 1 am a male citizen of the united states of the age of twenty one years or will be oh the ath day of november abat I 1 have or will have ac dually resided in this territory fous fou mouths and ana in this county for thirty days next preceding the day of tb the next ensuing election that I 1 have hav never been convicted of treason felony or bribery that I 1 am no nol registered or entitled to vote at an any other place in this territory and I 1 do further swear that I 1 am not a bigamist or polygamist that I 1 a am not a member of any order 0 organization or association which chic teaches advise counsels or eq encourages cou rages its members devotees I 1 or any other person to commit the tb crime of bigamy or polygamy 01 any other crime defined by law as a duty arising or resulting aiom ho membership in such order organal or association or which practices bigamy or polygamy or plural or celestial marriage as a doctrinal rite of such organization ilon 5 that I 1 do not and will bill no not publicly or privately or in an any manner whatever teach advise counsel op encourage any per son to commit the crime peri 0 of bigamy or polygamy or arty any other crimi arim defined by law either as a religious s duty or otherwise that abat 1 do d regard the constitution of tho the baited united stites st ites and the laws jaws thereof and the laws of this territory as in ini i terp eted by the courts as thel the supreme laws of the land the teachings pf af any order 1 bation or association to the contrary notwithstanding notwithstanding so help me god 11 when in truth each of the defendants fend ants was a member of in an order organization on an and association namely J the church of jesus christ of latter at r day saints commonly known as t the e mormon church which they knew taught adl advised sed counseled and encouraged its members and devotees to io commit the cri crimea raes of bigamy and polygamy as duties arising and resulting from membership in said bald order organization and association and which order organization and association as they all kne knew w 1 bigamy and polygamy v and plural and celestial marriage as doctrinal rites of said organization and that in pursuance of said conspiracy the said defendants wont went before the reg registrars istran of different precincts of the county which are des designated ignited and took and had administered to thiam them respectively the oath aforesaid THE defendants demurry to the indictment and the demur being overruled they pleader separately not guilty on the trial which followed on the of september 1889 the jury found the defendant samuel JO davis guilty as charged in the indictment the defendant was thereupon sentenced to pay a fl fine ne of and in default of its payment to be confined in the county jail Jall of oneida county for a term not exceeding days and was remanded to the custody of the sheriff until should be satisfied led soon afterwards on the same day the defendant applied to the court couii before which the trial was had and obtained a writ of habeas corpus alleging that kj he was wao imprisoned and rest restrained mined vf of hislip his liberty by bythe the sheriff of the county that his imprisonment was by virtue of his conviction and the judgment mentioned and the warrant issued thereon that tha such imprisonment was illegal and that adueh illegality consisted in this 1 that the facts in the indictment and record did nat constitute a public offense and the acts charged were not criminal or punishable under any statute or law of the territory and 2 that so much of the statute of the territory which provides that no person is entitled ep titled to register orvole or vote abany at any election who is a member of an any order organization or association which teaches advises counsels co n or encourages its members devotees or any other person to commit the crime of bigamy or polygamy or any other crime defined by law as a duty arising or resulting from membership in such order organization or association or which practices bigamy or oc polygamy or plural or celestial marriage as a doctrinal rite of such organization to is a law respecting ting an establishment of religion in violation of the first amendment of the constitution and void the court ordered the writ to issue directed to the sheriff sher lir returnable before it at 3 8 in the afternoon of that day commanding the sheriff to have the body of the defendant before the court at the hour designated with the time and cause of blis bis imprisonment and to do doand and receive what should then be considered concerning him on the return of the writ the sheriff produced the body of the defend mt int and also the warrant of commitment under which he was held an ani i the record of the case showing ids als conviction for the conspiracy mentioned and the judgment thereon to this thir return the defendant admitting the facts stated therein excepted to their deficiency to justify his the court holding that sufficient cause was not shown for the discharge of the defendant fen dant ordered him to be remanded to the custody of the sheriff prom from this judgment the defendant appealed to this court K R S sec 1909 THE DECISION february 3 1890 mr justice field at af er stating the case delivered the opinion of the court on this appeal our only inquiry to is whether the district court of the territory had add jurisdiction of tho offense off ensti charged in the indictment of which the de defendant fendal a nt was found guilty if it had jurisdiction we can go no further we cannot look into any alleged errors in its rulings on the trial ot of the defendant the writ of habeas corpus cannot be turned into a writ of error to rea re view the action of that court nor can we inquire whether the evidence established the fact alleged that the defendant wad was a member of an order or organization known as the mormon church called the church of jesus christ of latter day saints or the fact that the order or organization taught and counseled its members and devotees to commit the crimes of bigamy and polygamy as duties arising from membership therein on this hearing we can only consi consider def whether these allegations being taken as true an offense was committed of which the territorial court had jurisdiction to try the defendant and on this point there can be no serious discussion or difference of opinion bigamy and polygamy are crimes by the laws of bf all civilized and christian countries they are crimes by the laws of the united states and they are crimes by b the laws of idaho they tend to destroy the purity arity of the marriage relation to a disturb the pence peace of families to degrade rade woman and to debase man vow few crimes are more pernicious to the best interests of society and receive cei ve more general or more deserved punishment to extend exemption from punishment for such crimes would be to shock the moral judgment of the community to call their advocacy a tenet of religion is to offend the common sense of mankind if they are crimes then to teach advise and counsel their practice is to aid in their commission and such teaching and counseling are themselves criminal and proper subjects of punishment as aiding and abetting crime are in all other cases THE TERM RELIGION has haa reference to ones views of his relations to his creator and to the obligations they impose of reverence for his being and character and of obedience to hio will it is often confounded with the or form of worship of a particular sect but is distinguishable from the latter the first amendment to the constitution in declaring that congress shall make no do law respecting the establishment lish ment of religion or forbidding the free exercise thereof was intended to allow allba every one uDd under erthe the jurisdiction of the united states to entertain such notions respect respecting ug his relations to his maker and the duties they impose as may be approved by his judgment and con science ceaud and to exhibit his sentiments in such form of worship as he be may think proper not injurious to the equal rights of others and to prohibit legislation for the support of any religious tenets or the modes of worship of any sect the oppressive measures adopted awl ami the cruelties cruel ties and punishments inflicted by the governments of europe for many agasto compel parties to COD conform form in their remigious beliefs and modes of worship to the views of the most numerous sect and the folly of attempting in that way to control the mental operations of persons and enforce an outward conformity to a prescribed standard led to the adoption of the amendment in question it was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace good order and morals of society with mans relation to his maker and the obligations he be may think they impose and the manner in iii which an expression shall be made by him of his belief of those subjects ts no interference can le be permitted provided always the laws of society designed to secure its peace and prosperity and the morals of its people are nut dot interfered with however free the exercise of religion may be it must be subordinate to the criminal laws of the country co u passed with reference to actions regarded by general consent as properly the subjects of pu punitive n legislation there have been sects which denied as a part of their religious tenets that there should be any marriage tie and advocated promiscuous intercourse int recourse of the sexes as prompted by the passions of its members arid and history discloses the fact that the necessity of huran sacrifices on special occasions has been a tenet of many sects should a sect of either of these kinds ever fl flud nd its way into this country swift punishment would follow the carrying into effect efrece of its doctrines and no do heed would be given to the pretense that as religious beliefs their supporters could be protected in their exercise by the constitution of the united states probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts recognized by the general consent of the christian world in modern times as proper matters for prohibitory legislation must be ius suspended in order that the tenets tene to of a religious beligio U s sect encouraging eni crime maybe may be carried out without hindrance on this subject the observations of this court through the late chief justice waite in Rey reynolds reynalde nolde v united stat states are pertinent 98 U S in that case the defendant was indicted and convicted under section of the revised statutes which declared that every person having a husband or wife living who marries another whether married or single in a territory or ather place over which the united states have exclusive jurisdiction is guilty of bigamy and shall be punished by a fine of not dot more than five hundred dollars and by imprisonment for a term not net more than five years the case being brought here the court after referring to a law passed in december 1788 by the state of virginia punishing bigamy and polygamy with death said paid that from that day there never had bad been a time in any state of the union when polygamy had not dot been an offense against society cognizable by the civil courts arid and punished with more or lew severity and added marriage while from its very nature a sacred obligation is nevertheless in III 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 relation and sand social obligations and duties with which government is necessarily required to deal in fact ac or dingas as monogamous or polygamous marriages are allowed do we find the principles on which the government of the people to a greater or less extent rests and referring to the statute cited he said it is constitutional tut ional 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 que question tion 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 pu punished Dished while those who do must chust he 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 or opinions they way may with practices suppose that one believed that human sacrifices were a 9 necessary sary 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 dile of her dead husband would it tie 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 clu sive dominion of the united Stat esit is provided that plural marriages shall not dot be allowed owed can a man excuse his bis practices to the contrary because of his rell religious to one belief to permit this would be to make the professed doctrines of religious belief superior to the law or 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 I anil and in murphy v rammy U S 15 45 referring to the act of congress con ress excluding polygamists andt and bigamists biga I 1 mists from voting or holding office once the court speaking by mr justice matthews said certainly no legislation can be supposed more wholesome and necessary nece ry in I 1 n the founding of a f free self if governing commonwealth mon wealth lit fit to take rank as one of the ordinate coordinate co states of the union than that which seeks to establish it on the basis of the idea of tho the family as consisting in and springing from the union for life of one man and one woman in the holy state of matrimony the sure foundation of all that is stable and noble in our civilization the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement pro nent and to this end no means are mure more directly anti anil immediately medin tely suitable than those provided by this act which endeavors to withdraw all political influence from those who are practically hostile to its |