Show THE IDAHO TEST OATH DECISION supreme e me court of the united states no 1261 october term 1889 samuel D davis da vis appellant vs H G beason sheriff of oneida county idaho territory appeal from the third judicial district of the territory of utah STATEMENT in april 1889 the appellant samuel D davis was indicted in the district court of the third judicial district of the territory of idaho in the county of oneida in connection with divers persons named and divers other persons whose names were unknown to the grand jury for a conspiracy to unlawfully pervert and obstruct the due administration of the laws of the territory in this that they would unlawfully procure them selves to be admitted to registration as electors of said county of oneida for the general election then next to occur in that county when they were not entitled to be admitted to such registration by appearing before the respective registrars of the election P precincts r e cic n ts in which they resided and t taking ak n g the oath prescribed by the statute of the state in substance as follows 1 I do swear or affirm that I 1 am a mate male citizen of the united states of the age of twenty one years or will be on the ath day of november 1888 that I 1 have or will have actually resided in this territory tour four months and in this county for thirty days next preceding the ithe day of the next ensuing err g e election that I 1 have never been convicted of treason felony or bribery that I 1 am not registered or entitled to vote at any other place in this territory and I 1 do further swear that I 1 am not a bigamist or poly polygamist am that I 1 am not a member blany order organization or association which teaches advises counsels or encourages its members devotees or any other person to commit the crime of bigamy or polygamy or any other crime defined by law as a duty arasin arising or resulting from membership in suca such order organization or association or which practices bigamy polygamy or plural or celestial marriage as a doctrinal rite of such organization that I 1 do not and will not publicly or privately or in any manner whatever teach adise advise counsel or encourage an any y p person e to commit the crime of b bigamy ir my or pol polygamy gamy or any other crime defined by ty law either as a religious duty or otherwise that I 1 do regard the constitution of the united states and the laws thereof and the laws of this territory as interpreted by the courts as the supreme laws of the land the teachings of any order organization or association to the contrary notwithstanding so help me god 11 when in truth each ot of the defendants was a member of an order organization and association namely the church of jesus christ of latter day samil saints commonly known as the hurch which they knew taught advised counseled and encouraged its members and de kotees to commit the crimes of bigamy and polygamy as duties arising and resulting from membership in that order organization and association and which order organization ana and association as they all knew practiced bigamy and polygamy and plural and celestial marriage as doctrinal rites of said organization and that in pursuance of said conspiracy the said defendants went before the registrars of different precincts of the county which are designated and took and had administered to them the oath aforesaid the defendants demurred to the ane indictment and the demurrer being overruled they pleaded separately not guilty on the trial which followed on the of september 1889 the jury found the defendant smuel samuel D davis guilty as charged in the indictment the defendant was thereupon sentenced to pay a fine of and in default of its payment to be confined in the county jail of oneida county for a term not exceeding two hundred and fifty days and was remanded to the custody of the sheriff until the judgment should be satisfied soon afterwards on the same day the defendant applied to the court before which the trial was had and obtained a writ of habeas corpus alleging that he was imprisoned and restrained of his liberty by the sheriff of the county that his imprisonment was by bv virtue of his conviction and the judgment mentioned and the warrant issued thereon that such imprisonment was illegal and that such illegality consisted in this i that the facts in the indictment and record did not constitute a public offense and the acts charged were not criminal or punishable under an any statute or law of the territory anz and 2 that so much of the statute of the territory which provides that no person is entitled to register or vote at any election who is a member of any order organization or association which teaches advises counsels or encourages its members devotees or any other person to commit the crime of bigamy or polygamy or any other crime defined by law as a duty arising or resulting from membership in such order organization or association cia tion or which practices bigamy bigamy or polygamy or plural or celestial marriage as a doctrinal rite of sucha organization is a law respecting an establishment of religion in WO violation lation of the first amendment of the constitution and void the court ordered the writ to issue directed to the sheriff return able before it at 3 on the afternoon of that day ay commanding the sheriff to have the body of the defendant before the court at the hour designated with the time and cause of his imprisonment and to do and receive what should then be considered concerning him on the return of the writ the sheriff produced the body of the defendant and also the warrant of commitment under which he was held and the record of the case showing his conviction for the conspiracy mentioned and the judgment thereon to this return the defendant admitting the facts stated therein excepted to their sufficiency to justify his detention the court holding that sufficient cause was not shown for the discharge of the defendant ordered him to be remanded to the custody of the I 1 sheriff from this judgment the de fondant appealed to this court R S sec 1909 february 3 1890 mr justice field after stati stating the case delivered the opinion rif of 0 the court on this appeal our only inquiry is whether the district court of the territory had jurisdiction of the offense charged in the indictment of which the defendant was found guilty if it had jurisdiction we can go no further we can not look into any alleged errors in its rulings on the trial of the defendant the writ of habeas corpus can not be turned into a writ of error to review the action of that court nor can we inquire binau re whether the evidence established the fact alleged that the defendant was a member of an order or organization known as the mormon church called the church of jesus christ of latter day saints or in fact the order or organization taught and counseled its members and devotees to commit the crimes of bigamy and polygamy as duties arising from the membership shi therein on this hearing we can only y consider fon whether these allegations being taken as true an offense was committed of which the territorial court had jurisdiction to try the defendant fen dant and on this point there can be no serious discussion of difference of opinion bigamy and polygamy poly amy are crimes by the me laws of all cial civilized lazed and christian countries they are crimes by the laws of the united states and they are crimes by the laws of idaho they tend to destroy the purity of the marriage relation to disturb the peace of families to degrade woman and to debase man few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment to extend exemption from punishment for such crimes would be to shock the moral judgment of the community to call their advocacy a tenet of religion is to offend the common sense of mankind if they are crimes then to teach advise and counsel their tac tice is to aid in their commission and such teaching and counseling are themselves criminal and proper sub punishment as aiding and abetting crime are in all other cases the term religion has reference to ones views 0 of his relations to his creator and to the obligations they impose of reverence for his being and character and of obedience to his will it is often confounded with the cultus or form of worship of a particular sect but is distinguishable from the latter the first amendment to the constitution in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof was intended to allow everyone under the jurisdiction of the united states to entertain such notions respecting his relations to his maker and the duties they impose as may be ap proved by his judgment and conscience and to exhibit his sentiments in such form of worship as he may think proper not injurious to the equal rights of others and to t 0 prohibit ro halt I 1 legislation for the support of any religious tenets or the modes mode of wor ship of any sect the oppressive measures adopted and the cruelties cruel ties and punishments inflicted by the government of europe cormany for many ages to compel parties to conform in their religious beliefs and modes of worship to the views of the most numerous sect and the folly of attempting in that way to control the mental operations of persons and enforce an outward conformity to a prescribed standard led to the adoption of the amendment in question it was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace good order and morals of society with with mans relations to his maker and the obligations he may think they impose and the manner in which an expression shall be made by him on his belief on the subjects no interference can be permitted provided always in the laws ot of society designed to secure its peace and prosperity and the morals of its people are not interfered with however free the exercise of religion may be it must be subordinate to the criminal laws of the country passed with reference to actions regarded by general consent as property the subjects of punitive legislation there have been sects which denied as a part of their religious tenets that there should be any marriage tie and advocated promiscuous intercourse of the sexes as prompted by the pas of its members and history discloses the fact that the necessity of human sacrifices on special occasions ca has been a tenet for many sects should a sect of either of these kinds ever find its way into this country swift punishment would fol low the carrying carrying into effect of its doctrines and iio no heed aeed would be given to the pretense that as religious beliefs their supporters could be protected in their exercise by the constitution of the united states probably never before in the history of this country has it been seriously con tended that the whole punitive power of the government for acts reco recognized ogi by the general beneral consent of the christian world in modern times as proper matters for prohibitory legislation must be suspended in order that the tenets of a religious sect encouraging crime crime may be carried out without hindrance on this subject the observations of this court through the late chief justice waite in reynolds v united states are pertinent 98 U S in that case the defendant was indicted and convicted under section of the revised statutes which declared that every person having a husband or wife living who marries another whether married or single in a territory or other place over which the united states have exclusive jurisdiction is guilty of bigamy and shall be punished by a fine of not more than and by imprisonment in P r ison ment for a trim term of not more than five years ahe ahe case being brought he here rethe the court cour after tafter referring to a law passed in by the state of virginia punishing bigamy and polygamy with death said that from that day there never had been a time in any state of the union when polygamy had not been an offense against again sti society cognizable by the civil courts and punished with more or less severity and added marriage while from its very nature a sacred obligation is nevertheless in inmost most civilized nations a civil contract and regulation by law upon it society may be said to be built and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal in fact according as monogamous or polygamous marriages are allowed do we find the principles on which the government of the people to a greater or less extent rests and referring to the statute cited he said it is constitutional and valid as prescribing ng a rule of action of all those residing in the territories and in places over which the united states have exclusive control this being so the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute if they are then those who do not make polygamy a part of their religious belief may be found cuilty guilty and punished while those who do 0 must aust D be acquitted and go free this would be introducing introducing a new element into criminal law laws aws are made for the government of actions and while they can not interfere with mere religious belief and opinions they may with practices suppose one believed that human sacrifices were a necessary part of religious worship would it be seriously contended that the civil government under which lie e lived could not interfere to prevent a sacrifice or if a wife religiously believed it was her duty to burn herself upon the funera I 1 pile of her dead husband would it be beyond the power of the civil government to prevent her carrying her belief belie into finto practice so here as the law of the organization of society under the exclusive dominion of the united states it is provided that plural marriages shall not be allowed can a man excuse his practices to the contrary because of his rel religious ibe ious belief to permit this wo would u id be to make the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself government could exist only in name under such circumstances and in murphy v ramsey 1 S 15 45 referring to the act of congress excluding polygamists and big amista from voting or holding office the court speaking by mr justice matthews said certainly no legislation can be supposed more wholesome and necessary in the founding of a free self governing commonwealth fit to take rank as one of the ordinate coordinate co states of the union than that which seeks to establish it on the basis of the idea of the family as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony the sure foundation of all that is s stable and noble in our civilization the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement and to this end no means are more directly and immediately suitable than those pr vided aided by this act which endeavors withdraw alt all political influence from those who are practically hostile to its attainment it is assumed by counsel of the petitioner that because no mode of worship can be established or religious tenets enforced in this country therefore any form of worship may b be e followed and any tenets however destructive of society may be held and advocated if asserted to be a part of the religious doctrine of those advocating and practicing them but nothing is further from the truth whilst legislation for the establishment of a religion is forbidden and its free exercise permitted it does not follow that everything which may be so called can be |