Show CONGRESS MARRIAGE LAWS AND THE territories NEW BEDFORD mass may 1884 editor deseret neus neuis in your issue of april commenting at length on a recent article of mine in the te boston index on the question between mormonism and the national government you ask me to point out one 0 of f t the e marriage laws of congress and also that clause of the constitution which gives to thau than body authority in respect to marriage customs 91 I 1 send my rep reply ia directly to you instead of printing it in the index since readers of the latter paper pa er very well know from my several severa articles on the matter how the sentences which you quoted were to be understood congress of course has cassed sassed no law nor has it authority to 0 so concerning marriage in n the several states but for the territories and and the district of columbia where its ts jurisdiction J extends congress has enacted laws for protecting the form of marriage one such was passed in 1862 making bigamy or polygamy in any of the territories pun aej asha ashable e by a fine not exceeding and by imprisonment not exceed exceeding exceeding in five years its authority to pass suei such laws is derived from that clause in the constitution which gives it power to make all needful ul rules and regulations respecting the territory of the united states state s in the alleged interest of utah I 1 am aware this derivation of authority is sometimes denied but Cou congress gress has always legislated concerning the territories and neither party there has his ever questioned its right to rdo dio this it is vert very doubtful if judge field would extend his recent opinion from which you quote to a denial of this right on the point which you also criticize that I 1 make polygamy an essential crime aswell as well weli a as s polygamy ask you to notice portions portion s 0 era efa an artic e in the inda x of may ath which I 1 send pend jou rou on curs yours truly W J POTTER in the foregoing letter lemer mr potter admits that congress has no authority to pass yass laws concerning marriage iii in the several states but claims that that body possesses the power to do so in the territories the gent lemans argument is offered in answer to the following which appeared in the DESERET EVENING NEWS of april itis it Is strange that such a clearheaded clear headed writer as mr potter shows himself to be does not perceive the wide differ ence between essential crime and an offense made criminal by law and also the lack of constitutional authority in congress to legislate on the subject of marriage he asks shall the na tion ignore its own marriage laws and permit the plea of religious faith to nullify its authority in respect to mar niage customs etc will mr potter through the columns of the index please quote for our dur benefit and the enlightenment of its readers one of the marriage laws of congress and that clause of the constitution w which h ic h gives to that body authority in respect to marriage customs etc we do not know of any marriage law of the united states andee and we deny that congress has any constitutional power to pass a law of that kind or to regulate marriage customs and ask the gentleman to be kind enough to bring forth his proofs for the position he has taken mr potter in attempting to answer I 1 this refers to the anti bigamy laws of congress specially enacted for the territories iri ri ant but these are not Ad marriage laws in th sense intended in tre the above paragraph indeed there is no such a thin thing as a marriage law of congress athe the anti bigamy act of 1802 1862 and the antl anti polygamy act of 1882 1883 are arc merely laws providing penalties for certain practices legislated into crime they do not specify what marriage is theado nor how ow it should be solemnized nor define or regulate it in anyway what we asked mr potter to point out was one neof of those 6 marria marnia marriage e laws of congress which marriage he allu aliu alluded gd e d to and to show the clause of the constitution from which congress der derived ived the authority which he claimed it possessed in respect to marriage customs there is no such clause and therefore of course he is unable to cite it the fact Is congress has no constitutional authority to legislate on marriage at all and ad this was the point of our arh arl k guin aument tent fent in reply to mr potter its powers are defined and limited by the constitution and all powers not therein expressly granted are r reserved to the states or to the people and the g genius e alus of this government and one of its essential characteristics is the right of local self government and the 10 local 1 I regulation of domestic institutions Marri marni marriage are ake is a matter entirely outside of the jurisdiction of the national government and belongs to the people in tl their heir respective localities ocal customs and regulations being the law in each community but mr potter points to the clause of the constitution which gives ives con gress the power to make I 1 all needful rules and r regulations I 1 lations respecting t 1 n the territory of the united states s 1 why ald mid he mot quote the clause lu in full it reads respecting the territory and other property of the untied states the words we h ave avo placed in italics V mr potter omits in his quotation and why because they coi col contain abald the anwer answer to bia h proposition the rules ruie rule and nd regulations that congress may make are respecting property not deop people e the clause refers to land the le of this Terri territory tor y have acan acknowledged ow hedged ledged the authority of of congress thus specified and have acquired title to the Is land or territory on which they settled by ur chasing it of the united states in a conformity with the rules and anck regulations of congress concern lM it in one sense then it is no longer territory land land or property property erty of the united states but proF be belongs ong to the people eople who have purchased it and Eo wunder the clause quoted can congress n now ow claim to regulate it or the p people 0 lecho who have lived upon it will mr potter claim that con congress can dispose of and sell the people ca le iu in the territories yet under els ris his interpretation pre tation of this clause in the constitution co ngu it can do that very thing for there is another word he has omitted in his quotation it says ingress shall have power to dispose of band and make all needful rules and regulations etc if this clause refers to the people in the territories congress can dispose of them as it may the territory land or other property property of the united states we c claim aim alm that this clause confers no authority whatever upon congress to legislate in regard to marriage or any an other local custom among the people people and aud and that the right to do this is reserved by the constitution to the people themselves the fact that congress has exercised the power and that the supreme court of the united states has stated that it is now too late to question the authority of congress in this respect does not affect the logic or the f force orce of our position congress has assumed certain powers as a matter of expediency but if there is any virtue in language or any restriction on the powers of that body at all it is positively certain that the exercise of authority to legis legislate lato on marriage in the territories is just as much outside of the constitutional powers of congress as if attempted tn in regard to the states but supposing congress has some im implied plied piled or inferred powers derived from the clause cited though this cannot be under art articles lelei LX IX and X of the amendments what rules and regulations r e ions lons are needful for a body of citizens c leizens of the united states sta tes capable of exercising the lowers of local self governments government why simply to see that they have a local government republican in form thattie that thal the principles of the constitution are observed and carried out that all citizens have the common mon a rights of citizens that the legislative isla tive judicial and executive branches of the local government are chosen by the people in the interests of the people of the locality and that the authority of the general government as specified fled in the constitution Is recognized recognized and obeyed that is all the night right g t to legislate directly and to have exclusive authority in all cases whatsoever is not conferred upon congress for any other place lace atthe but the district of columbia alythe and the places ceded to the united states tates for arsenals dockyards dock yards etc if mr potter can find any authority for more than this in the constitution let him quote the clause we unhesitatingly say that all that congress has done I 1 in n this diorec direction tion is asur usurpation pation and assumption and that long iong ong usage and submission do nou not alter t er the principle nor change a wrong 1 into a right and as to marriage we c claim laim that congress has no constitutional power to legislate concerning it and that as a matter of fact there are no marriage laws of the united states that each state and territory has its own marriage laws or customs or regulations and that their enactment belongs of right under our system of government to each individual community and not to the national congress consideration of the subject referred to by mr potter in the boston index of 3 may the ath will for lack of space h bavato to be post postponed boned to another occasion |