OCR Text |
Show lWilUSIIEIPiSHIP. Full Text of the Decision With Reference Refer-ence to the Bights of Illegitimate Children to tho ;tate THE CONGRESSIONAL ATTITUDE. Not to Visit the Odium that PoDular Opinion Hurls at This Unfortunate Generation. The full letter of the opinion handed down by the United States supreme court with reference to tho rights of corporation of the mormon church, and then adds: "And all other acts aad parts of acts heretofore passed by the said legislative assembly of the terri tory of Utah, which establish, support, maintain, shield or countenance polygamy, polyg-amy, be, and the same hereby are, disapproved dis-approved and annulled; provided, that this act shall bo so limited and construed con-strued as not to affect or interfere with tho rights of property legally acquired under the ordinance heretofore mentioned, men-tioned, nor with the right 'to worship God according to the dictates of con science,' but only to annul all acts ami laws which establish, maintain, protect or countenance the practice of polyg amy." etc. As this act was passed be tore the death of Thomas Cope, and, ol course, before descent cast upon his children, it applies to this caso, if the argument of respondents be sound. Tin penitenthe, to discontinue their unlawful unlaw-ful cohabitation. Our conclusion is that the appellant, George A. (lope, is entitled to sharo in his father's estate, and the decree of he supreme court of tho territory, must, therefore, be reversed. polygamous heirs has reached the offices of the counsel for the respective respec-tive sides. Tho decision was on an appeal from the probate court to Judge Cam-, who allirmed tho lower court, and from whose opinion an appeal was taken to the court of last resort. Justice Hrown: The sole question presented for consideration con-sideration was whether George II. 'ope, the illegitimate child of Thomas Cope, was, under tho tacts of the case, the heir of Thomas Cope, deceased. The lindiug of facts, so far as tho same are material, was as follows: I. That Thomas Cope, deceased, died lit Salt Lake county, Utah territory, terri-tory, intestate, on tho - 'day of August. iiiestion is therefore presented, does the territorial act of lfo.' establish, support, sup-port, maintain, shield or countenance polygamy? It clearly does not estab lish, support or maintain it. Does it shield or countenance it? It does Dot declare the children of polygamou-marriages polygamou-marriages to bo legitimate; in iaef, it treats them as illegitimate, or rather, ii does not, except by indirection or in fore nee, mention them at all; but i puts all illegitimate children, whether the fruit of polygamous or of ordinary adulterous or "illicit intercourse, upon an equality and vests them with inheritable inher-itable blood. ' Nothing is better settled thau that re heals, anil the ;imn nniv be said ot' an I4, leaving certain real esiate therein, the description of which Is immaterial. 2. That said Thomas Cope left at the time of his ikatli surviving him Jane Cope, his lawful wife. Thorn is 11. 'ope, nis only legitimate son, and G.-urge II. Cope, his illegitimate son by Margaret Cope, hi-t polygamous or plural wile, and that the nun 'ri.fge of said deceased with Margaret Cope was contracted while the said Janet Cope was the living uiiilivorccd wile of said deceased, And aseouelusions of law the court loiiud: 1. That the sole heirs at law of said Thomas Cupe, deceased, jtro Janet Cope and Tnomas II. Cope, who are alone entitled to share in the distribution distribu-tion of the estate of the said Thomas Cope, and that all tho real estate above mentioned descended to and vested in the said J.riet Cope ami TI10111 is II. Cope, subject to tho administration upon such estate. That the said George II. Copo is not an heir of said 1 lunnas Cope, de-ceased, de-ceased, ami not entitled to any share of said 1 .lOinas Cope's cslaio. M'.. Justice Broivii delivered thoopin-ion thoopin-ion 01 the court. The appelant. George II. Cope, who is admitted to lie the 1, legitimate child of Thomas 'opo, by Mai'gnvt Cope, his polygamous wite", claims the right to iulu ra a -l.iuv ot his father's estate under a territorial statute. of Utah, en- liulinenls, hy implication; are not fa vored by tho courts, and that no statut will he construed as repealing a prio ; one, unless so clearly repugnant ther -to as to admit of no other reasouabl construction. McCool vs. Smith, 1 HlacK, 45; Howen vs. Lease, 5 Hill '.''.' 1; ex parte Verger, 8 Wall, f5, 10): Furman vs. Xiohol, 8 Wall, 14; Unite States vs. Sixty-seven packages, 1 . How. S,; Red Rock vs. Henry, 10(i U S. r.iiU. In order to subject the territorial ::c of 1H.V.3 to the annulling clause of tin act of congress, its tendency to shie! or countenance polygamy should b direct and unmistakalile. No law wi, lie declared void because it ma indirectly,', or hy a possible, an. not a necessary, construction, b repugnant to an annulling act. Its di rect and proximate results are alone li bo considered. While, as before ob served, tho act may have been passei in view of tho existing state of thing, and as an indirect method of reeo" niziug tho legitimacy of polygamou children, it has no tendency in itself t shield or countenance polygamy so fai as it applies to children. Legislatioi for the protection of children born ii , polygamy is not necessarily legislation favorable to polygamy. There is no inconsistency 111 shielding the one am! in denouncing the other as a crime. I has never been supposed that the acts nt tli!)'&at.'n"il alalna l.iir'ititnitintv nql. acted in 1 '",., which provides as follows fol-lows "f-eciinn :5. 1. legitimate children chil-dren and their mothers inherit in like manner'' ns lcgiiiinale "irum the lather, whether ncknowb dged bv him or not, provided it sha.l be made, to appeal' to the satisfaction of the court thai he was tne lather of such illegitimate illegiti-mate child or ehi.di'en." H hiie statute is an innovation upon the coiiiinnii law. and in some particulars particu-lars a novelty in legislation, wo perceive per-ceive no ol.jectioti to its validity. By section II 01 the act of September !l, IH50. t) Stat . at Large, 45H, establishing a territorial gov eminent for Ula'u, it is I provided: "That the legislative power of said territory shall extend to till rightful wuhjecls of legislation, consistent consist-ent with the constitution of tho United States and the provisions of 1 hist act; but no law shall bo passed inturfering with the primary disposal of the soil; no tax shall lie imposed upon the property prop-erty of the United Slates, nor shall tho lands or other property of non fesi- j oral children, whose parents inter marry after their birth, had the slight est tendency to shield or countenance illicit cohabitation, but they wen rather designed to protect the 'unfortu nate childreu of those who were willing to do all in their power towards righting right-ing a great w rong. So, if the act iu question had been passed in any othel jurisdiction, it would have been considered consid-ered as a perfectly harmless, though possibly indiscreet, "exercise of the legis lativo power, and would not be seriously seri-ously claimed as a step towards tho establishment es-tablishment of a polygamous system. As this act aunuls only such terri torial laws as shield or countenance polygamy, if we sustain the construction urged by the respondents here, it musi necessarily follow tnat tho children oi polygamous' marriages would be deprived de-prived of their power to inherit from the father, while tho offspring of othe illicit relations would be left to inherit under the act. This would seem to In at war with tho intent of the leiris uenis do taxed higher than the lands or other property of residents. All the laws passed by the legislative assembly and governor shall be suhniitled to the congress of the United States, and, if disapproved, shall bo void and of no effect." ef-fect." With the exceptions noted in this section, the power of the territorial territor-ial legislature was apparently as plenary plen-ary as that of the legi.-l itu're ot the state. Maynard vs. Hill, 125, IT. 8.204. The distribution of aud the right of succession suc-cession to the estate of deceased persons are matters exclusively of state cognizance, cogni-zance, and are such as were within tho competence of the territorial legislature legisla-ture to deal with as it saw lit, in the absence of an inhibition hy congress. Indeed, legislation of similar description descrip-tion is by no means unprecedented. By the laws of mady slates natural children child-ren are permitted to inherit from the mother, aud also from the father in case of the after marriage of their parents, par-ents, or where there urn tin lnufnl lattire. Hut whatever doubts there may be regarding the proper construction 0 this act, we think they are dispelled b a scrutiny of the subsequent legislation upon the same subject. In 1K7H the legislature of Utah, being evidently ii some doubt as to the proper interpretation interpre-tation of the congressional act of lniij passed another act declaring tha' "every illegitimate child is, in all cases, an heir to its mother. It is also heir to its father when acknowledged by him." This was followed March 22, lH-2, b an act of congress, commonly know) as the Edmunds law, 22 slat, at lame 41. which, while providing for further punishment for polygamy and its ac companying evils, in section seven expressly legitimates the issue of polygamous or Mormon marriages, born prior to January 1, 1MS3. If the territorial act of 1N,Y be open to the charge of shielding or children, or where an adoption is made iu due form, or where recognition is made by will. And if tho question of parentage be satisfactorily settled there would seem to be power in the legislature legisla-ture to endow even tne children of an adulterous intercourse with inheritable blood from tho father. Legislation admitting illegitimate children to the right of succession is undoubtedly in derogation of the common com-mon law, and should be strictly construed, con-strued, and hence it has generally been j held that law s permitting such children whose parents lia e since married, to inherit, do not apply to the fruits of an adulterous intercourse. Sams v. Sams' Executors, 85 Ky. ;i:ni. Hut. while it is the duty of the courts to put a construction upon statutes which shall, so far as possible, be consonant con-sonant with good morals, we know of no legal principals which would authorize auth-orize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure fail-ure to conform to our standard of .social .so-cial and moral obligations. Legislatures Legisla-tures are as competent as courts to deal with these subjects, and, in fixing a standard of their own, are beyond our control Thus iu Brewer's Lessee vs. countenancing polygamy, much more so is this act, which not only admits polygamous children to the right of in lieritance, but actually legitimates them for all purposes. The law- remained substantially in this condition until March 3. 1887, when the act of congress con-gress known as the Edmunds-Tucker law, 24 Stat at Large, 635. was passed, the 11th section of which provides that "the laws enacted by tho legislative assembly as-sembly of the territory of Utah wh'ch provide for or recognize the capacity of illegitimate children to inherit, or to be entitled to any distributive share in the estate of the fatner of any such illegitimate child, are hereby disapproved disap-proved and annulled; and no illegitimate illegiti-mate chiid shall hereafter be entitled to inherit from his or her father, or to receive any distributive sharo in the estate of his or her father; Provided that this section shall not apply to any illegitimate child born within twelve months after the passage of this act, nor to anv child made legitimate by the 7th section of the act of 1MM2." Here, then, is the gist clear and tin-qiialilied tin-qiialilied declaration of congress of it disapproval of the legislation of Utah recognizing the inheritable capacity o! the issue of polygamous marriageSi'and so careful is congress of rii?hts admired niougiier. i t ret. 17. liW, it wss said by Mr. Chief Justice Taney, speaking of this court, that the expedient,' and moral tendency of a similar law. was a ijuestion lor the legislature, aud not lor this court; and it was held iu that case that a statute of Maryland, endowing endow-ing illegitimate children with inheritable inherita-ble blood, applied to uch as were the offspring of an incestuous connection. It is true that the peculiar state of society so-ciety existing at tho time this act was passed, and still existing in the territory terri-tory of Utah, renders a law of this kind much wider in its operation than in Other states and territories; but it may be said in d f nee of this act that the children embraced by ,it are not responsible fur this state of things, and that it is unjust to visit upon them the consequences of their parents' sin To recognize the validity of the act is in the nature of a punishment upon the father, whose estnte is thus diverted from its natural channel, rather than upon the child: while to hold it to be invalid iu to treat the child as in some sense an outlaw and a particcps crimi uis. It is contended by respondents, however, how-ever, that even conceding the validity of this statute, it was abrogated ami annulled by the anti-polyga.iiy act o congress of July 1, iHfi-.', p Stat u Large, 501. the second section of wlnci annuls by title the ordinance for the iu- j orexisting under these laws that it excepts ex-cepts by special proviso all children declared to be legitimate by the 7th section of the net of 1NS2, as well as all illegitimate children born within twelve months after the passage of this act. These several acts ol congress, den! iug as they do with the same subject matter, should be construed not onl as exnressing the intention of congress at the dates tho several aids wen passed,, but the later acts should also be regarded is legislative interpretation f the prior ones. United Stales v Freeman. 3 Howard, 55li,504: Stockda'. vs Insurance company, '20 Wail. 33 Now if it had been intended by the ac: of 1HH2 to annul the territori.i act of ls.i, fixing the inheritable capacity of illegitimate children, win did congress in lHs;. recognize the le jitimacy of children born of polyga mous or mormon marriages, prior a January 1, 11? Or why. in tho no of 1SST, did it save the rights of sue children as well as of all others boi i within twelve months ofter the passagi of that act? Tne object of these enact menu is entirely clear. Not only doe congress refrain" from adding to th odium which popular opinion vis; ; pon this innocent but unfortunate lass of children, but it makes them th special object of its solicitude, and n the same lime oilers to the parents :i inducement, iu the nature of a locti. |