Show AS WAS EXPECTED I Judge Zanes Decision in the Miner Disbarment Case I < > TEE MORAL POINT OP IEW r if I f The Court Indnlg es ini an Arffument in Favor of aionogatny and Miner is Disbarred j In the Third Judicial District Court Utah Territory Salt Lake County In the matter en the citation of Au relius Miner to show cause etc lAt l-At the present term of this court Aurelius Miner an attorney and coun S eloratlaw thereof was convicted of the crime of unlawful xiliabitatioL and sentenced to imprisonment in the Penitentiary Peni-tentiary for the tem of six months and to pay a fine of 3UJ and the costs of prosecution Before udgment he was aSKed by the Court it it was his intention inten-tion in the future to obey the laws of the Tnited States respecting polygamy and unlawful cohabitation awl not to advise ad-vise other people to break them to which he said that since his majority he had uever said that he would obey all f the laws of Congress When reminded of the obligations of his path as an attorney at-torney he answered that he was admitted ad-mitted to practice law before the act referred re-ferred to took effect that he took an oath to support the Constitution of the Uuited States that since he had reached majority there had been laws of the United States in force which he had said publicly that he would not obey and that there were other laws in force before his time which prooablv he I Qqld not have obeyefl had heliv I during the time tliCy were force that he vas ready to obey all constitutional laws that he differed from the courts as to the validity of the law against polygamy polyg-amy and unlawful cohabitation i that when a Jaw reaches into the domain of morals he had a right to so differ When further reminded that the Supreme Su-preme Court of the United States the tribunal of final appeal provided by I the Constitution of the United States II had repeatedly affirmed the statute against polygamy and unlawful cohabitation cohab-itation to be valid and binding upon every person within their jurisdiction he answered that he had said from his childhood in the language of Solomon to fear God and keep his commandments command-ments is the whole duty of man that he reserved the right to determine for himself the constitutionality and the validity of the law in question A certified copy of the trial and conviction con-viction ot the respondent and a copy of the questions by the Court and the answers of the attorney transcribed by the official reporter were filed in the court and constitute the accusation accusa-tion The record shows the conviction of the accused and in view of the questions put to me defendant and of the circumstances under which they were made his evasive answers authorized au-thorized the inference that he did not intend to obey in the future the law that he had violated in the pact Un der the circumstances the Court entered en-tered a rule against the accused and cited him to appear on a day named and show cause why his name should not be stricken from the roll of attorneys and counselors of the Court On the day named he appeared ap-peared in person and by counsel but made no answer other than by oral argument Coun el also appeared at the instance and in behalf of the Bar Association of Salt Lake City and insisted in-sisted on the accusation and on the disbarment of the accused The statutes of the Territory of Utah relating to the matter in hand so far as it is necessary to refer to them are as follows The first subdivision of Section 154 page 180 Laws of 18S4 provides that an attorney and counseloratlaw may be removed and suspended bv the Supreme Court and by the District Court 1st upon his conviction of felony or misdemeanor involving moral turpitude turpi-tude in which case the record of conviction convic-tion is conclusive evidepce1 2d upon any violation of the oath taken by him qr of his duties as such attorney and counselor The first clause is Section 141 page 179 Ibid provides UIt is the duty ot an attorney and counselor coun-selor 1st To support the Constitution and the laws of the United States and 01 this Territory Section 156 page 181 I Ibid is as follows j The proceedings to I reUove or suspend an attorney and counselor under the first subdivision of Section 151 must be taken by the court on the receipt of a certified copy of the record of conviction The proceedings under the second subdivision of the last named section way be taken by the court for matters within its knowledge or may be taken upon the informatu of another In view of thefaeta and the law tlc question arises Should the name of theaccused be stricken from the roll of attorneys and counselors of this court If the crime of unlawful cohabitation involves moral turpitude his conviction of itself is sufficient cause This presents pre-sents the further question Is the conduct con-duct which constitutes the crime immoral im-moral If a man lives with two or more women in the habit and repute of marriage mar-riage such conduct constitutes the crime of unlawful cohabitation The effect of this crime upon society are essentially I es-sentially the same as those of polygamy A man who has a lawful wife hying commits the latter offense when he formally for-mally marries another woman and he commits the former offense when he associates with two or more women as their husband or apparently as their husband Both crimes usually exist together to-gether in this Territory although prosecution pros-ecution for > polygamy is often barred by the statute of limitations Assuming then that both crimes are essentially the same from the standpoint morals inasmuch as the definition of polygamy Usjmofe simple and better understood I will consider that crime from a moral point view FirstI assert that the mora sense of the civilized world has condemned polygamy as wrongful ard immoraL SecondI assert that polygamy violates vio-lates wellettled moral principles Knowing that the various ethical I schoo1S may differ in somerespects and I thafcindividuals may differ as to he extent ex-tent 6t moral turpitude involved this I I drltne I wiU point oufroertain well settle l moral rules or tests wKTch this cruneviolates and wjifchjshqjiv that it reatlvtimnioral WhUe graLphilo i riYlT rB differ with pctthe source of ethical rules they do not disagree dis-agree as to their existence or as to their application to and binding effect upon human conduct While one school of ethics asserts that moral truths are expressions of the Divine Will revealed in sacred writings or in the human conscience con-science and another school makes state enactments the source of right and wrong and a third believes that man is endowed with an innate sense by which to determine right and wrong and a fourth affirms that rightfulness or wrongfulness of conduct is determined deter-mined from its effects nevertheless it is believed that all schools concede con-cede that conduct which in all its consequences immediate and mediate aggregates human happiness over In man pain is right and conduct which in all its effect immediate and mediate causes more human miserv than happiness is wrong even if in determining the moral quality of conduct we take into I view its effect not only in this life but in the life to come still it is the belief of civilized men who avo faith in a future life that happiness in the future state is consistent with happiness in thisthat the common good with respect re-spect to this world is consistent with the welfare in the world to come Assuming then that such actions and institutions as promote human L welfare are morally right and that such actions as produce pain and distress dis-tress arc wrong and assuming also that justice which is equalness is right I will endeavor to test by these rules the morality of the monogamic marriage the marriage of one man to one woman and the polygamic marriage the marriage of one man to two or more women Whether we consider marriage in law simply as a contract or as more than contracta statusa state or condition it should fix the rights and duties of the parties with respect to I each other They are mutually bound to love respect and cherish each other It is a union for life or until severed aTordii g to law All the duties of the husband which belong to the relation are due to the wife and the duties which the wife owes that relation are due to the husband If the husband may neglect such duties and deprive his wife of the benefits and happiness J Whichtheir discharge would bring if he may divide his society his attention and his support with other women wo-men j if he may thus neglect his wife and her children for the benefit of other women and their children and the wife still be held to discharge all the duties which belong to the relation then marriage is for the wife an unequal and an unjust contract con-tract And if the wife may refuse to discharge her obligations also then this holy union of matrimony has no binding bind-ing effect and free love or promiscuity muSt follow With the overthrow of the institution of marriage will come the destruction bf the family and of the home and that refuge of chastity of ourity and of virtuethat fountain of devotion of love and of happiness the institution which lurmshes so largely the incentives to industry to selfre spect to fidelity and to patriotismthe sure foundation of social order of propriety pro-priety and progress and the cornerstone corner-stone upon which civilized government reposes will inevitably be destroyed The great number of divorces obtained ob-tained in the District and Probate Courts of this Territory nnd the illegal il-legal divorces heretofore granted by the Mormon Church show that the institution in-stitution of marriage is regarded lightly where polygamy prevails Under the statutes of this Territory divorces maybe I may-be obtained for such trivial causes and II have been so frequently granted that the 1 Utah divorce is a proverbial term of derision and contempt and it must be so since the tendency of polygamy is to make marriage a means of gratification gratifi-cation of passion and bestial lust Again polygamy is based upon the idea that woman is mans inferior not upon the idea that she is his equal it disregards her womanhood her rights and her claims The laws of the Territory Terri-tory abundantly illustrate this proposition proposi-tion These laws with respect to the rights of married women to property like the institution whose influence probably enacted them probably belong to abygone age they are unworthy of this Polygamy brings woman into contempt and must result in her degredation i it tends to make her an object of low and grovel ling desires Its tendency is backward and downward to the barbarism where the monogamic marriage found her with a yoke of oppression and injustice upon her in the chains of slavery Monogamy broke the yoke and loosed her chains and led her up the shining way of progress to the 1i1h plane of equality of man In the darkness of barbarism and in the vales of superstition supersti-tion woman is a slavein the light of intelligence and truth and on the hilltops hill-tops of progress and civilization she is crowned with respect and love She is mans equal before man andbeiore God and she is free y The family composed of one ius band and one wife and the children of that union are more likely to agree and cooperate than the family composed of one husband and many wives and the children of such relations The mother will be impartial and just between her own children hnfc shp trill n n + be so between her own and the chil dren of other living wives because she has not the same feelings and affec tions towards them All the children of the monogamic marriages bear the same relation to both parents and to each other The family is held by a common tie all its members have equal feelings and affections common com-mon hopes and aspirations and goodwill good-will harmony and happiness are likely to prevail j but rivalries animosities dissentions illwill discord and un happiness are likely to grow up and exist in a family composed of one hus band and numerous wives and the I I children of such wives Such a family includes all the elements of domestic discord Superstition and fear may keep it down but it will then become a smothered fire consuming the peace of the soul The happiness and welfare of scdetv demand that children when growing up shall have the care attention port counsel advice and example sup of the father as well as of the mother The great mass of men are hardly able to provide for and bring up weB one tarri ily of children If a man attempt there surely be neglect somewhere more While the Christian world believes that the NeW Testament condemns gamy it also believes that infinite poly wis dom and goodness are manifested in naturerthat the disposition ofmeri and women to associate together and tofoSn form the relationship termed marriage h S f rfesaon in a natural law of the will an of the Great Author And the relative proportion of males to females is SlJ believed to be an intimation in nature upon the subject of marriage from the same Infinite Source If polyganiv gamv were such an expression Upon the ub ject of marriage it is reasonable to assume that it would have been so ordered that several females for each male would appear on the stage of human hu-man existence And assuming the Great Author to be infinitely wise and infinitely gocd why has woman been given in her highest state of development develop-ment in her best estatea fond desire to be the only wife Why has she that secret dread and inward horror of being one of many Whyhas she a nature which abhors polygamy Why is it that monogamy tends to produce pro-duce harmony and happiness and polygamy discord and pain While instances of unhappiness and distress may attend the monogamic marriage yet in all its effects immediate and mediate near and remote it aggregates human happines over unhappiness it is a friend to humanity and it is therefore morally right And while some instances of happiness may attend polygamy yet in all its effects immediate immedi-ate and mediate near and remote it aggregates pain and distress It is an enemy to humanity L it is morally wrong While immorality consists alone of wrong thoughts beliefs purposes and intentions municipal law cannot reach it but when those beliefs and intentions cause and attend actions and conduct injurious to society if of sufficient importance im-portance such conduct may be defined as crime prohibited and punished When the conduct and the intention in-tention both are immoral the crime involves moral turpitude The law does not notice trifles and therefore does not expressly forbid for-bid conduct slightly wrong and immoral im-moral Conduct may be injurioIs to society but the injury may be so slight that the law will not noticeit And the immorality of some misdemeanors is so slight that the offense does not in a legal sense involve moral turpitude This cannot be said of polygamy and of I unlawful cohabitation The injurious effects upon society of the conduct which constitute these crimes are so widespread and far reaching and so J destructive of human happiness and of human welfare that they cannot be characterized otherwise than as grossly immoral They involve moral turpitude in a high degree A second cause for striding the name of the accused from the roll of attorneys is the failure and refusal to support the Constitution and the laws of the United State Any violation of the oath of an attorney or any violation of his duties as such attorney is cause for his disbarment disbar-ment Among the duties expressly enjoined en-joined upon an attorney is that of supporting sup-porting the Con stution and laws of the United States The accused wa convicted of a violation of the laws of the United States in the commission of the crime of unlawful cohabitation and when asked by the court before sentence I sen-tence if he had anything further fur-ther to say why sentence should not be pronounced and also with respect re-spect to his intentions to obey the law which he had violated and as to his intention with respect to advising others to violate it be answered among other things that he differed from the courts in respect to the validity of the law against polygamy and unlawful cohabitation and that he reserved to himself the rurhtto determine for 1im self the validity of that law In dc ivering the opinion in the case of ex pane Wall 107 United States S 0 liepts the Court say Of all classes and professions the lawyer is mOlt sacredly bound to uphold the laws He is their sworn servant and for him of all men in the world to repudiate and override the laws to trample them un der foot and ignore the very hands of society argues recreancy to his position posi-tion and office and sets a nernicious example to the insubordinat and dangerous dan-gerous elements of tbe body politic It manifests a want of fidelity to the system sys-tem of lawful government which he has sworn to uphold and preserve Here is an officer of the Court who does not acknowledge its right to determine de-termine questions of law when submitted sub-mitted to it according to the forms of law This man is licensed by the Court to expound the law and to advise others with respect to itrecom mended and endorsed has having a good moral character and as competent re liable and worthy as an attorney and cmnseloratIaw and yet lIe claims the right to determine a law invalid which the tribunal of last resort has pronounced pro-nounced valid he appeals from all earthly tribunals to a higherhe invokes in-vokes a higher law Having been convicted con-victed of a crime he defies the law and denies the power of Congress to pass laws and the rights of the courts to determine what the law is He claims to be a law unto himself The Court finds that Aurelius H Miner an attorney and counseloratlaw of this Court has been convicted of a misdemeanor involving moral turpitude turpi-tude and that he has violated his legal duty as such attorney and counselor in failing and refusing to support the Constitution Con-stitution and the laws ot the United States The judgment of the Court is that the name of the accused be stricken from the roll of attorneys and counselorsat law of this Court and that he be deprived de-prived of the right to practice therein CHABIVES S ZANE Judge November 1885 |