Show MASTERLY SENATOR ABLE PLEA BEFORE THE COMMITTEE inthe and legal aspect grandly portrayed at the time of the hearing before the committee on territories of the united states senate in regard to the proposed admission of the territory of atah as a state on the of last month we published a synopsis of the arguments made by the kindness of hon john T caine we now have the arguments in full and herewith give that made by hon joseph E mcdonald mr chairman and gentlemen of the committee what I 1 propose to say I 1 have put in writing and it relates to the constitutional and legal questions involved in this matter rather than to the status of the territory I 1 the territory of having 1 adopted a constitution republican in form and tendered the same to tho congress of the united states for acceptance cep tance we have been requested to express our views as to the right of the territory to admission as a state of the union and as to the power of congress to impose terms and conditions upon it as a state in respect to the marital relations of the inhabit i tants of the proposed state and to provide for and punish the violations of such terms and conditions the territory of utah was formed into a government in 1850 being a part of the territory acquired from mexico by tho treaty of guadalupe hidalgo made in 1848 and has continued to be an organized territory up to the present time we do not understand that any objection is made to he boundaries proposed in the constitution submitted nor is it claimed that there is not sufficient population or wealth to maintain a state government but the ground of objection is thai a majority of the people of the territory are members of a religious community known aa the mormon church and that the tenets of this church not only foster and protect polygamy but encourage its practice and that if admitted as a state the restraining power of the federal government would be removed and polygamy would be if not established by state authority at least tolerated by it to meet this objection two clauses have been inserted into the proposed constitution the first is as follows art XV sec 12 bigamy and polygamy being considered incompatible with a republican form of govi emmemt each of them is hereby for bid denand declared a misdemeanor any person who shall violate this section shall on conviction thereof be punished by a fine of not more than 1000 and imprisonment for a term not less than six months nor more than three years in the discretion of the court this section shall be construed as operative without the aid of legislation and the offenses cs prohibited by this section shall not be barred by any statute of limitation three years after the commission of tho of fence nor shall the power of pardon extend thereto until such pardon shall be approved by the president of the united states 7 the second reads as follows provided that section 12 of article XV shall not bo amended revised or in any way changed until any amendment revision or change as proposed in addition to the requirements of the provisions of this article be reported to the con gress of the united states and shall bp by congress approved and rati daud such approval and ratification be proclaimed by the president of the united states and if not so ratified and proclaimed said section shall remain perpetual in considering the subject of the admission of utah as a state under the constitution opposed two questions arise first Is the ground of objection to the admission valid second can congress impose and enforce the conditions w the articles quoted tho federal constitution was ordained aej established for the united of america and did not contemplate tho formation of territorial governments as a part of the system of government created by it it provided in the simplest form that new states might be admitted by congress into the union and it authorized congress to ex elusive legislation in all cases over tho district to become the seat of gov emment otho united states and like power of legislation on congress over the forts etc and other buildings of the united at the time of tho formation and adoption of alio constitution tho only territory belonging to and under the control of the united states waa the northwestern territory which had been ceded by virginia in and was at tho time of tho adoption of the constitution organized under tho 1787 passed by the con of the gross federation and in waa abo nature of a compact between state of virginia and the united tho states the fifth article of which rido d that there should be formed pro in saia territory not less than three adore than five states nor it also provided that when thoro should be free inhabitants in any ot the divisions of said naaem in article V the state territory should be its delegates into the congress of the united states on an equal footing with the original states in all respects whatever and should be at liberty to form a perma nent and state government pro aided vided the constitution and government so to be formed be republican and in conformity the principles contained in the articles embraced in the ordinance this ordinance was understood to be ratified by the sixth article of the federal ution so that it would seem that the government of the united states ordained and established by the fed eral constitution was not designed nor intended to operate as a government except under its general powers as representing states to make this the more manifest the tenth amendment which may be considered a part 0 the original instrument as it was proposed by the first congress that assembled under the constitution and was suggested by many of the states as a condition of its ratification declared that the not delegated to the united states by this constitution nor pro by it to ake states are reserved to the states respectively or to the people by the fourth section of article IV it had been made the duty of congress to guaranty every state in the union a republican form of government recurring Kecur ring to the ordinance of 1787 it will bo seen that it was ordained and declared by the authority of the united states in assembled that certain articles six ni number therein set out should bo considered articles of compact between the original states and ahe people and states in said territory and forever remain unalterable unless by common consent the first of those articles declared that no person demeaning himself in a peaceable and orderly manner shall ever bo molested on account of his mode of worship or religious sentiments in said territory the fifth contained the guarantees guaranties guaran ties in regard to the admission of states to bo formed out of the territory to which we have made reference and the sixth was the famous antislavery anti slavery clause declaring there shall be neither slavery nor involuntary servitude in said territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted the binding force of this compact has never been judicially determined as far as wo know ant it was subsequently carried into full force and effect by tho government of the united states and by the people of tho territory when they catao to form state governments govern menta mhd constitutions of which in each instance were required to be not only republican but not to bo repugnant to these ar of the ordinance of july JL which were declared to be irrevocable between the original states aad the people and states of the territory north west of the river ohio five states in all were formed out of this territory pursuant to the articles contained in the ordinance ohio being tho first was admitted in 1803 and wisconsin the last in 1848 the territorial cession by the state of virginia and other of the original states of the and unoccupied lands within their limits to the united states were made in pursuance of a request contained in a resolution of the congress of the confederation adopted anthe ath of september 1780 that the lands ceded should be disposed of for the common benefit of the united states and be settled and formed into distinct ro publican states which should become members of the federal union and have the same rights of sovereignty freedom and independence as the other states and the territorial government organized by the ordinance of 1787 beag in pursuance of this pledge was designed to be a mp government not the foundation of a colonial system the power of local self government was conferred upon the people of this territory with the right to make laws for the good government of the district not repugnant to the principles and articles established and declared by the ordinance it was declared that the purpose of the ordinance was to extend the funda mental principles of civil and religious liberty which form the basis i whereupon these republics their laws and constitutions are erected to fix and establish those principles as the basis of oil laws constitutions and governments which forever hereafter shall be formed in said tern tory to provide also for the establishment of states and permanent gov therein and for their admission to a share in tho federal councils with iho original on an equal footing states at as early periods as may be consistent with the general interests the terms and time of admission or the new states were fixed ty this fifth article of the ordinance and the right of admission became absolute when there should be eaty thousand free inhabitants m any subdivision named in said article or sooner m the discretion of congress object to no conditions except that the tion and government of the new state bo republican and in conformity to tho principles contained ID the articles the ordinance of 1787 except the sixth article relating to slavery and involuntary servitude became in substance the organic law for the government of abo territory south of the ohio biver and known as the southwestern territory and at various times after the cession of the by the state of virginia been ceded to the united states by the states ot forth carolina south carolina and georgia the subsequent acquisitions in and have boon by treaty instance including the treaty every by which the title to tha territory of utah was obtained it was stipulated that the th ceded ter I 1 who might choose citizens of the slater bo incorporated in the union of united states and admitted as soon 88 pos asble rc cording to tho principles 0 the Q 1 V tho enjoyment of all the rights advantages and immunities of citizens c thu united states this was the language of the treaty with france of by which the territory of louisiana was acquired and it has been substantially followed in treaty since made which territory has been acquired it seen therefore as has already been suggested that under the federal constitution the only constituents recognized as forming any part of the government of the united states are states and the relation of states to is a trust relation the governments provided for them as provisional and ought to terminate as soon as the territories ri are in a condition to be incorporated corp orated in the union of the united states it has been the uniform practice of congress to admit a new state whenever the number of the inhabitants residing in a territory equaled the number necessary to elect one member of congress and the constitution framed by them was republican thus fixing the fundamental principle by which the policy of the government was established as to the admission of states the condition of the trust is that states shall bo admitted when they present themselves with a constitution that conforms to this principle and in effect establishes the proposition that no other or further considerations are required to entitle the territory to admission does the exception which it is pro posed to make in the case of utah rest on any sound reason or constitutional right we think not it will not do to say that utah may be denied the right of statehood because of the religious belief of a majority of its inhabitants article I 1 of tho ordinance of 1787 established forever religious liberty in the northwestern territory and the first amendment to the federal constitution declared that congress should make no law respecting an establishment of religion or prohibiting the free exercise thereof the objection therefore must be that the practice of plural marriages or polygamy which it is understood the mormon church tolerates is in irrepressible conflict with the uniform system of jhc thc united stales in respect to the damage contract and relation haa not only the but that it is its duty to suppress a practice the tendency of which it is to uproot the foundations of society in the states and that this power may be exercised over a territory but era not be over a state in other words it is claimed that the practice of polygamy in the territories of the united states whether sanctioned by the religious sentiments of those who practice aitor not may bo proscribed and punished by congress but that if congress should admit the territory into the union as a state it could not impose terms for the suppression of polygamy because the new state would have to be admitted upon an equal footing with the original states in all respects whatever this is the formula under which all now states have been admitted into the union and yet there is not one of those states that did not have conditions annexed to its admission which did not in terms apply to the original states notably inhibiting the right to tax lands for five years after their entry or sale without the consent of con gress and for that time suspending the sovereign power of taxation tf private property and the states formed out of the northwestern territory were required to make their constitutions conform to the articles of compact contained in the ordinance there is not a question but that the sanction of plural marriages and the practice of polygamy is in direct conflict with the marital system of the united states and while the government of the united states and of the several states treat the marital relation as one arising out of a civil contract it is a contract peculiar in its character it cannot be dissolved by the mere will of the parties and while it continues in force neither party to it has the legal capacity to enter into another contract of that kind or to establish any legal relation of that character with any member of the opposite sex and the social system based on this relation with its limitations and restrictions is the es quality of the civilization to which the people of the united states belong and whatever tends to overthrow or destroy that relation is hostile to those fundamental principles of civil and religious liberty which the ordinance of 1787 declares to be tle basis whereon these republics their laws and constitutions are erected and can be no more violated by the states than by a territory to bo admitted therefore into he union of the united states upon an equal footing with the original states in all respects whatever is not to bo admitted to the right to overthrow or in any manner impair that civilization upon which the institutions of the country rest senators let me ask you right there suppose any state in the union should pass no law to punish any particular crime polygamy murder or any other crime could congress passa law to punish that crimmin cri moin that state if it was admit ted X am nat prepared to say that congress could initiate it say this that the people of the united states have the power to protect themselves against that which would necessarily destroy the civilization upon which their social system as well as their government rests senator fc if abero was no law against homicide how would you reach it by if the Staf odid not provide a law on trtat 0 mr mcdonald Mo Donald how would you reach it senator 1 I ask you the back soy no |