Show made iy ay chief justice zane HOW polygamists MAY VOTE the pull decision in the bennett case B bennett of west jordan was tried on monday before judge zane of illegal registration He formerly had two wives but some timo in 1888 his plural wife obtained a church divorce he was tried for unlawful cohabitation and was acquitted in may 1889 he registered for the purpose of voting the prosecution holds that after a man has become a he cannot register except through being pardoned by the president judge powers prosecuted hawlins and moyle defended the evidence showed the fact that the polygamous wife had been divorced from the defendant judge powers objected to testimony regarding the separation and argued that a man who had been a polygamist could only become eligible for registration through the power of the president why if this thing goes said powers poly can procure a church divorce and can register and vote and the edmunds law would become a farce this is a very serious thing I 1 say there is only one way that a man can be relieved of the polygamous status and that is by executive clemency which is an easy thing to get he cant be rehabilitated with the franchise in any other way it would be very easy for the whole lot of ts to make application pub liely for amnesty and they would get it ut they dont want to do this and shtil they do I 1 say they cannot exercise the franchise if they do they nullify the law I 1 say that if the plural wife should die he could not become eligible he has been a polygamist in the eye of the law and cant be anything else unless the president pardons him his own act or the act of god could not absolve him it must be by executive clemency and in no other way judge zane said the question read is objected to on the ground that it is immaterial and irrelevant because as insisted if a polygamous marriage with this woman in respect to whom the question was asked was proven thai it continues until the defendant cb ins pardon and amnesty from the president of the united states that no agreements between the parties to terminate the polygamous relation is sufficient though made in good faith and the parties thereafter cease to recognize recognise each other as husband and wife and refuse to maintain the relation by act or intent the eighth section of an act of congress approved march ad is as follows no polygamist bigamist or any person cohabiting with more than oie woman and no woman cohabiting with any of the persons described as aforesaid in this section in any territory or other place over which the united states have exclusive jurisdiction shall bo entitled to vote at any election held in any such territory etc the question is what is the meaning of the term polygamist as used in this section if it is a relationship what is necessary to terminate it the act of congress known as the edmunda tucker law which is an amendment to this statute uses similar language the last clause of section 24 of that act is as follows no person who shall have been convicted of any crime under this act or under the act of con gross aforesaid approved march 22 1882 or who shall boa polygamist or who shall associate or exhibit with persons of the other sex shall be entitled to vote in any election in said territory or be capable of jury service or to hold any office of trust or emolument in said territory in the general sense a man is termed a polygamist who practices polygamy or who maintains that it ii right that broader than intended of this statute the supreme court of the states in the case of murphy vs bamsey IT S page 40 referred to has question under consideration that was an action against the utah commissioners for refusing to register the plaintiff in that case and in reference to one of the questions raised by demurrer the court says but in both caes the complaints omit the allegation that at the time the plaintiffs respectively claimed to be registered as voters they were not such either a bigamist or a polygamist lyga mist they dial not deny in the complaint that they were bigamist or polygamists at the timo they offered to register and the de marrer was to the effect that the complaint was insufficient in not so averring the court says futher it is argued that they cannot be understood as meaning those who prior to the passage of the act of march 22 1882 had contracted a or polygamous marriage in violation of an existing la such as that of july 1 or before the enactment of any law forbidding it for to do so would give to the statute a tivo effect and by thus depriving citi zens of civil rights merely on ac count of nets which when commit i ted were not offenses would make it an ex post fifo law the question was whether the law in question applied to such persons as en into polygamy before the act referred to took effect or whether it i referred refe ired to au existing relation in our opinion any man is a polygamist or bigamist in the sense of this section of tho act who having previously married one wife still living and having another at the time when he presents himself to claim registration as a voter still maintains that relation to a plurality of wives al thought from the dato of the passage of the act of march until the day he offers to register and vote he may not in fact have cohabited with more than one woman without regard to the question whether at the time he entered into such relation it was a prohibited and punishable offense or whether by reason of lapse of time since its commission a prosecution se for it may not bo barred if be still maintains alie relation he is a bigamist or polygamist because that is the status which the fixed habit and practice of his living has established he has a plurality of wives more than one women idiom he recognizes as a wife of whose children he is the acknowledged father and whom with their children he maintains as a fenily he is the head and this status as to several wives well continue to exist as a practical relation although for a period he may not in fact cohabit more than one for that is quite consistent with the constant recognition of the same relation to many accompanied with a possible intention to renew cohabitation with one or more of the others when it may be convenient and author in the opinion the court says but because having at some time entered into a bigamous or polygamous relation by a marriage with a second or third wife while the first was living he still maintains it and has not dissolved it although for the time being he restricts actual cohabitation to but one he might in fact abstain from actual cohabitation with all and be still as much as ever a bigamist or a polygamist he can only cease to be such when heh as finally and fully dissolved in some effective manner which we are not called on here to point out tho very relation of husband to several wives which constitutes utes tho forbidden status bo has previously assumed abs umed the crime of bigamy or polygamy consists in entering into a bigamous or polygamous marriage and is complete when the relation begins that of actual cohabitation with more than one woman is defined and the punishment prescribed in the third section the disfranchisement operates upon the existing status and condition of the person and not upon a part offense it is therefore not retrospective he alone ia deprived of his vote who when he offers to register is then in the state and condition of a bigamist or or is then actually cohabiting with more than one woman continuing to live in that state afterwards ter wards is not an offense ofie nse although cohabitation with more than oneco man is but as one may bo living in a or polygamous state without cohabitation with more than one woman he is in that sense a bigamist and yet guilty of DO criminal offense the point that tho court seemed to have its attention more particularly directed to was as to whether cohabitation with more than one woman was essential to the justification of the registration officer in refusing registration on the ground that the applicant was a polygamist and the definition given here seems to be with respect to that point the court says he can only cease to be such that is a polygamist when he has finally and fully dissolved in some effective manner which we are not called on here to point out the very relation of husi band to several wives which constitutes utes the forbidden status he has previously assumed the court held that the polygamous relation may exist though the polygamous marriages may have been contracted before tho law took effect and it may exist through the parties do not actually cohabit together the question is what is necessary to constitute th relation because it is a relation it is the relation which a polygamist bears to his wives where there is no cohabitation existing what therefore is necessary to constitute a polygamous relation where there is no cohabitation the court says he still maintains that rela ion to a plurality of wives and arther if he still maintains the relation he is a bigamist or mist what is the meaning of this erm maintain as here used does it simply mean the relation that may exist after the parties have in good aith agreed to be husband and wife no longer and ceased to recognize each other as such and refuse by physical or mental act to maintain he polygamous relation does it mean simply the relation existing by reason of the former unlawful marriage and cohabitation to maintain n its ordinary sense means to continue by act or intent it includes some consent some act of the mind there may not be any outward act but some act of the mind consenting to the continuance of the relation consenting to recognize woman as bis wife consenting to maintain the relation is necessary the court farther says he has a plurality of wives more than one woman whom he recognize sas a wife of whose children he was the acknowledged lather there the necessity of recognition is slated that be recognizes her in some way and there is no way of recognizing except by some act of the mind admitting the relation aa existing the question is whether a man recognizes a woman as his wife when both that she shall not be his wife when they have in good faith said that they aiu not livo together and when theli refuse to continue con tinne the relation and to recognize the relation Is that a recognition the court bays farther recognizes a wife of whose children he is the acknowledged father and whom with children he maintains as a family of which he is the head there the court undertakes to ive a description of what constitutes the relation confess it is a very imperfect ne he has a aliby of wives more than one woman he recognizes as a wife of whose children he is tho acknowledged father and whom with their children be maintains as a family of which he is the head the court speaks of the polygamous relation as a status a state or condition is here referred to a status which the law recognizes as unlawful the law may recognize things as lawful or unlawful when unlawful it is condemned and this status as to several wives may well continue to exist the court says as a practical relation although for a period he may not in fact cohabit with more than one fer that is quite consistent with the constant recognition of the same relation to many accompanied compa nied with a possible intention to renew cohabitation with one or more of the others when it may be convenient it is spoken of as a practical relation although for a period he may not in fact cohabit with more than one woman for that is quite consistent with constant recognition so that the court holds to the idea that there must be recognition to constitute the polygamous relation the idea is held all through the opinion that there must bo a recognition that the woman is his wife the court refused to say in terms how the relationship could be terminated it says he can only cease to be such when he has finally and fully dissolved the relation in some effective manner the most effectual manner of dissolving the polygamous relation is for the man and his polygamous wife to agree in good faith to terminate and dissolve the polygamous relation to cease to recognize each other aa man and wife and to refuse to maintain the relation longer A divorce would not of itself terminate unlawful and pardon and amnesty would not terminate aba polygamous relation if the parties should continue to recognize each other as husband and wife such a construction as given above encourages polygamists to abandon unlawful cohabitation and the polygamous relation and in that respect to obey the law and become good citizens the dissolution would be effective if the parties before other persons agree in good faith to separate and afterwards continue to disregard tho polygamous relation and abandon it and refuse to recognize each other as husband and wife of couram it is for the jury whether the dissolution is in good faith and whether the parties are keeping it pardon and amnesty are not intended as a means of terminating a polygamous relation pardon is the remission afan offense after the parties have been convicted amnesty is the remission of the consequence of a crime and may bo after or before a conviction though pardoned the defendant might be guilty of maintaining and recognizing the polygamous relation it is for the jury to determine whether the parties in good faith have ter ruina ted the polygamous relation in this case and the evidence on that point that is competent ig admissible the only question left is whether th answer to question tends to prove the dissolution of the polygamous relation and tends to prove that the par ties in good faith are keeping the dissolution whether they consider the marriage as dissolved and in good faith are keeping their agreement |