| Show AN OPINION Hon George Ticknor Curtis has written writ-ten and published in pamphlet form an opinion on the Constitutional validity of certain clauses in the proposed State Constitution for Utah the clauses as will at once be understood being those in relation to polygamy and bigamy In this paper the distinguished gentleman gentle-man is jjiore at home than he was in his reclnt article in The Furum Here he deals wholly with constitutional constitu-tional law in which field he has attained eminence and in this paper he sustains his reputation as one of the ablest constitutional lawyers and cleverest logicians in the land Ht goes at once into the question of the power of the Federal government and the State to make such a compact as is proposed in the State Constitution a compact by which the State binds itself not to amend the Constitution in certain respects without the consent of Congress and also by which the Con stitution restricts the pardoning power ill cases of polygamy to those instances i approved by the President of the Lnitec States and proceeds to show that it is perfectly competent for the Federal Fed-eral government and the State to make the compact which will be binding on each Tn States are prohibited from making agreements with each other without the consent of Congress but they may ando do covenant perpetually and irrevocably irrev-ocably by and through the Constitution Constitu-tion the United States that the Federal Government shall have and exercise ex-ercise all the powers ceded to it by their assent to the Constitution and that no State shall exercise any powers prohibited prohib-ited to it by that instrument He asserts as-serts that the idea of compacts covenants cove-nants and agreements between the separate sep-arate States is imbedded in the Federal Constitution and forms its principal princi-pal strength It is that idea which gave the Federal government the authority to assert its existence and powers against an attempt of the Southern States to break their compacts com-pacts with the United States It being competent for the State and the United States to form a compact by which certain cer-tain powers are to be retained by the State and certain others exercised by the United States the Federal government govern-ment is clothed with authority to enforce en-force the provisions of the compact when a State undertakes to break it In such a cade the action would not be against the State in its corporate capacity ca-pacity but by appropriate legislation to punish individuals who should violate the covenant So far the States have agreed to practically the same conditions and made the same compacts but that fact does not preclude a new State from surrendering portion of its sovereignty which the other States retain nor from the Federal government and the new State taking nto account the social or political conditions existing in the local community States must be admitted on an equality and if when a new State enters the Union it makes a covenant wi h the United States in diminution or limitation of ata sovereignty sover-eignty in a way in which other States have not limited theirs the new State is not placed ia the Union on an inequality in-equality with the other States Mr Curtis employs the present case as an illustration The people of Utah propose to covenant with the United States in their State Constitution Con-stitution that the State Executive shall not grant a pardon to a person convicted of I polygamy or bigamy without the concur con-cur cncc of the President of the United dtht s and that tkey the p ople of the State of Utah will never amend or caauge that part of the Constitution which makes and punishes the offences of polygamy and bigamy without the consent ol Congress Why have they offered to make this compact com-pact Because there is a peculiarity In their past social condition which requires that in order to remove possible objection to their admission into the Union as a State they shall make this compact in diminution of what would otherwise be their unlimited sovereign right to change their Constitution in this respect at their own pleasure It has nothing to do with the Con titutional validity of this compact that Oilier Sciteb have not made it or have not be n in the same situation or have not had the tame motive Mr Curtis regards Section 3 of article of the Federal Constitution is the only source of the powers of Congress not only to admit new States but to create and govern the Territories Terri-tories and declares that Congress is by the section placed under the obligation of a public trust 1o permit the Territories Terri-tories to become States and to bring them into the Union when the peop e desire it and they have sufficient population popu-lation and resources to maintain a State government republican in its form and spirit After the Territory t < has arrived at that condition it is contrary I con-trary to the spirit of republican institutions institu-tions and to the intent of the Constitution Constitu-tion to withhold from it the rights and privileges of Statehood and to keep it In subjection to a distant power over which it has not even a practical control con-trol The gentleman cites a number of instances in-stances where States have made compacts com-pacts with the United States One of these was when North Carolina ceded to the Federal government a region of country Tennessee a condition of the cession being that no regulation made or to be made by Congress shall tend to emancipate slaves Another case cited relates to the Territory of Mississippi Missis-sippi the organic actof which prohibited prohib-ited the importation of slaves into the Territory from any place out of the limits of the United States A third case is that of the Territory of Orleans the organic act of which contained a prohibition against the introduction of slaves except by citizens of the United States removing into the Territory or actual settlement and being at the time of such removal bona fide owners of such slave or slaves and every slave imported or brought Into the Territory contrary to the provisions of this act shall thereupon be entitled to and receive his or her freedom When the Territory of Orleans Or-leans was admitted into the Union as the State of Louisiana Congress imposed im-posed various conditions one being that the Constitution should provide for keeping the public records of judicial 1 judi-cial and legislative proceedings in the English language The people were almost exclusively French and their public proceedings had always been conducted con-ducted ana recorded in that language The cases of Missouri and Nebraska are cited in both of which solemn compacts wore made between the respective re-spective States and tho United States Missouri was admitted to the Union upon the fundamental condition that a certain clause of her Constitution should never be construed to authorize the passage of any law by which any citizen of either ef the States of this Union shall be excluded from the enjoyment en-joyment of any of the privileges and immunities to which such citizen is entitled en-titled under the Constitution of the United States Nebraska was compelled com-pelled to put in the Constitution an article forever irrevocable without the consent of the Congress of the United States providing etc the case being similar to that of Utah From the precedents cited the jurist asserts that it is established that Congress can prescribe conditions in which a new State shall be admitted into the Union the conditions being based on the predicament pre-dicament or situation in each State that Congress may prescribe the conditions condi-tions in advance or the people may present such conditions as thoy are willing to make that the compact may curtail limit or diminish the sovereignty of the people and that the compact may be absolute or be made in a form that will require the assent of Congress to any change Hence it follows that the proposal of the Constitution for Utah whereby the people of that Territory if admitted under this Constitution would bind themselves never to change heir Constitution in respect to polygamy polyg-amy and bigamy without the assent of Congress would not be a new and unprecedented un-precedented compact but that it would be in the same form and the same terms intvrhich similar compacts have been made with other neW States The paper is an exhaustive oife and answers fully and completely demolishes de-molishes the objections which have been urged against the proposed Constitution Con-stitution that it was not competent for the State to make the compact and limit the sovereignty of the people Its It-s the opinion of a profound lawyer and a humanitar an It closed as follows Speaking as a citizen of the United States and of one of the States of tbe Union I should be unalterably opposed to a cession to the Federal government of any power to regulate the marriage relation any form regulate aces lu the Territories and In the District of Columbia the United States have now all the authority over the marriage relation ation that is needful and in respect to the territories more authority than has been wisely used I shouldgladly do anything in mypower to end whatpoljgamyremain in a merciful tuidtChristiau spirit and peaking ai a lawyer I have no hesitation in saying that the compact which the Mormon inhabitants of Utah now offer to make with the United States would be in my judgment perfectly valid consistent with onr system of governmeat and efficient for everything that can be desired |
