Show A PLEA FO FOR R RELIGIOUS LIBERTY AND THE RIGHTS OF conscience ARGUMENT IN THA SUPREME COURT OF THE UNITED 8 STATES T ATES AP RIL L 26 28 1886 by george ticknor curtis lorenzo snow commonly called apostle snow 11 a rank in the hierarchy of the mormon church was convie convicted ted and sentenced on three indictments in the district court of utah territory for violating the sd section of the act of cong congress eed passed march 22 1883 1881 known ail aa the E edmunds s act the judgments were affirmed by eba supreme court f utah and the cabs afterwards brought to the supreme court of the united states ly by writs of error and there argued together the julie lw under which mr banow was indicted prohibits cohabitation 1 with more than ane one woman 11 the evidence in the case ease showed that he be lived exclusively with one of his wives and had no association with either of the others which would have been in any degree improper in any other gentlemen but he had acknowledged knowledge ife them all so fo be his wives wie tie facts in evidence and the questions arising on the bills of exceptions so far as aa they the y were discussed by b y mr aurtis urtis sufficiently appear from the fal lowing stenographic report of his arga i ARGUMENT once may it please e your honors and once only in the course of my professional career I 1 have been counsel in a cage in which the life of a 4 human being bein was at stake this was in in the days of of my yo youth uth 16 46 years ago when the energies were full when ambit ambition iod was high when applause was as sweet and the desire for success success was vas keen and now when I 1 have passed my three score and ten have arrived aniced at an age when we look backward and not for ward when fact no longer allures and little Is Is left but duty to be discharged because it is duty I 1 find myself here engaged in a cause which is directly to affect the peace the welfare the safety the tights rights 0 ot thousands of my fellow creatures and may possibly draw into its couse the lives of some of them beat bear with me this great responsibility at least so far as to understand and appreciate the gro grounds u a J s of ston bear with me w while I 1 separate those considerations and elements which are nt fit to be entertained by tw this court from those which belong exclusively clu to the statesman and the legislator no one can bt more sensible than I 1 am that when a statute is to be construed by IL A court it is the mearing and intent of the lawgivers that is to be ascertained I 1 do not need to be told that it is yo your r province not tomake to make laws but to 19 interpret ter r t and apply thra them nevertheless it does Ws happen under ohr system of government ament that even when there js is nothing to be determined but the co cod str action of a law constitutional provisions must be taken into consideration and when that is not the cas case it al also so happens that the time ol of t the lie enactment of the law the circumstances which led to it the public facts and public equities which surround ouid it each ad all are of fit and proper consideration in determining the meaning and application of the language of 01 the legislature to 10 successive cases as they aey arise I 1 am firmly convinced utter after a very thorough study of these cases that both of of these inquiries arise on en these records I 1 am to submit to you a son on the religious liberties of 0 these t ese people peo e called ca e and it arises a aises in this way this is man was wai convicted three several times on evidence which was precisely pr eels y this and no more that on a certain day ly he casually introduced an acquaintance of his hig to two women who were present in chals office offic when ewhen he was under arres arrest t as p his wives 1 I 1 and that is all there is of his language wa which cidh is in eyl evi fience ence iq in T these aiese cases the whole hole of his hi 81 other conduct condu ct if you crasp all its incidents in one bundle indle resulted from moral and religious duties as ne he estimated and believed his religious duties to be and I 1 shall demonstrate 0 o you I 1 think is the precise question here without a doubt lou bt it presents a constitutional question and a very grave one the first proposition to which I 1 have to astr your attention Is stated on the page of my brief the construction given by the court below to the ad section of the act of march 1882 andon which the plaintiff in error was thrice convicted quakes it violate the first amendment of tile the constitution because V it makes make the statute punish the ahe profession of a religious I 1 belief belief when under that construction it is applied to the evidence in the three cases now before the court 5 1 i in approaching the subject of religious liberty there is of course a great ideal deal of antecedent history to be taken into account I 1 do not propose to go over the whole of lot it ity because most of us here jare feare legal and thi historical storied scholars 1 i you mr chief justice in aa a recent case reynolds vs united states 98 U S bad nad occasion to develop the subject somewhat it is necessary for me on this occasion to supplement what you then said b by a little further development of the su subject b act and moreover it is necessary tor for me to show what was the religious religions persecution on which history had set the seal of its condemnation before our constitution was made in all the I 1 modern ages of the world in which religious persecution has been carried on by governments arili or in thenamae the name of public authority T the whole essence of the atrocious wrong has been this power h has said to the weak renounce your religions gp opinions inions recant your religious beliefs or die or go to prison rison 11 this was what was a s said by phiiip II 11 and the inquisition on to the whole anti catholic party in his dominions this is what was said by bloody mary of england when she burnt her protestant subjects at the stake this was what was aard in the persecution in northern italy in th the seventeenth century to the subjects oll ot the duke of savoy when taj the great protector of the commonwealth of england signified that if that persecution did not cease the he english auns ns should be heard in the vatican ris this too was what wha was said i ita inexpressible griel grief and shame I 1 advert to it by my puritan ancestors of massachusetts chu elit iSetts when they hanged Qa quakers akers this is what I 1 am to show will be said by this edmunds act to the mormons cormons of utah if it is to be construed and applied here as it was construed and applied by the territorial judges tf 11 1 I fail ail in sho schowine wing this I 1 shall fall fail in this branch of my argument if I 1 succeed in showing this these judgments will be reversed I 1 pass to the more immediate thresh hold of the constitutional que question but before I 1 cross it I 1 must advert again to the two religious liolis which stand nearest in time to the establishment of our constitution I 1 have alluded to the persecution in northern italy which cromwell cromwe checked it as while that tion was goin on on that milton penned that tjaart grand sonnet which rang like a trumpet through christendom avenge oh lord thy slaughtered saints whose whose bop bops lie scattered on the alpine mountains moun taina cold it was milton too who as latin secretary to the protectors govern ment wrote the dispatches which threw the shield of england over nearly all the protestants of the continent a protection which they did not lose until charles 11 II basely sold himself to the french king for gold that protection was not ag again ain afforded to them until william wilham of orange lifted the crown of england out of tile the degradation ra into which it had fallen when rb it wm wai worn by his bis nudes what the poet said about the poor peasant of cf the alps is what s some ome future muton may have to say iffe do not find and some better way out but of this sad pro problem olem in utah than any that we have yet tried for if the barriers of the constitution are to be disregarded we may soon hear that the blood of these people is demanded we may take warning from the ane spirit ot violence that prevails vails everywhere I 1 lEvery everywhere where those who are disliked for any cause are made the victims of rage at this moment a bill is passing through congress to indemnity certain chinese for outrages coin bitted upon them b by Y mobs aft mormons cormons will suar any thing rather thim than have otheir religious out of them b by persecution se and this is what is now tried by the machinery of the criminal law ast agat is adm administered blistered in that territory they will obey toe law when they can learn what it rt requires quires efthem of them and whatever is done to them they wih not i be driven into hito rebellion much as of their enemies emmies might like to have them t for they upa the doctrine of nonresistance non resistance by physical force as a part of their religious creed they will use no DO violence but they may be made the ifie victims bf violence the persecution which milton denounced noun ced and which cromwell stayed occurred j just three years before the persecution of the quakers in massachusetts chu the mosi accurate account of the quaker persecution is to be found in Palf al freya roys history of new england it transpired one hundred and twenty seven fears before the C united states tates was adopted i the between the case of cannon vs va the united states U 8 raa 55 and the three cases case sot now vs the united states is broad and cle clear at treating the three present cases as one tor for the Our purposes poses of the argument bee because ause with reference to the tut ional question stion all the evi evidence denoe that needs to he be consi considered dereI was the same in all of thea them I 1 shall contend that t the he evidence on which snow was convicted aeran an the statute makes be conviction arideen tene violate we the free exercise of religion guaranteed by the 1st ast amendment of the constitution in cannons case unlawful cohabits flau was held to consist in a mans living in the same house with two women eating at their respective tables one third of the time pr thereabouts and holding them put to the world by his language ian or conduct or both as his wives without occupying the same bed with either efthem of them or sleeping Jeep lugin in the same r room bomor or having sexual intercourse with either of them no constitutional question arose in that case because there was vas no lio language guage proved to have been used by cannon in speaking of either of the two women as his wife which required to be put to the jury to iliad find whether he used the term wife as indicating a spiritual and religious relation oi or used it i to signify a claim of righetto continue a carnal relation with both of them notwithstanding q the prohibition of the statute but in snows case tile the only evidence of his language consisted in proof that he spoke of two women as his wives under circumstances which called for instruction to the lury jury to find in what sense and with what intent he used that language if he s spoke IV oke of the women as aa his wives meaning that by the religious religion law of his church he was hound bound to them in a bpi spiritual ritual and religions tie that did not necessarily signify the enjoyment of a 4 carnal relation but was a mere expression of his bis religious belief he could not be convicted of unlawful ul by hi or by tile the use of his language langu uge as part gaii of 4 the evidence of guilt w without without violating his rights of conscience on the other hand if he spoke of the wom women en as his wives in a sense of a claim of right to ingin maintain tim a carnal relation with them or to dwell with both of th them em notwithstanding the prohibition of the statute the fhe evidence of his language might go to the jury along with alil t the e facts proved without violating his religious religions freedom and if he whole evidence taku taken together had a reasonable tequency tendency to show unlawful cohabitation under a proper definition of that af fence he be could have been convicted without a violation af his religious free freedom douA the imperative necessity ces sity therefore fox for a careful instruction to the jury to andin sense and with what intent he used the word kitei wife or wives which instruction st wa was not given and was refused js is perfectly apparent the chief justice was there a request q u 0 of th that atkind kind I 1 mr urtis curtis I 1 am going to show p presently antly what the request was and 1 I say that it covers the whole ground The thole sole proof of mr guage consists lia JIB the fact that when under arrest and in the marshals marshalla office lie he introduced harriet and sarah as his bis wives to mr air peery an ac of his and a brother mormon I 1 just previous to the examination before the U S commissioner his words were mr peery or brother peery this is my wife harriet mr peery or brother peery this is my wife sarah arah 11 testimony of franklin N snow record in case no 1278 p 16 the extreme importance of having it ascertained by the jury J ury in what sense and with what intent he spoke of these two women as his wives is apparent from the testimony of the women who were made compulsory witnesses for the prosecution thus mary snow speaking of mr snows snow Is occasional visits to her flera said aid in answer to a qa question estion put by the prosecution la in these thebe visits and in all our intercourse wp we recognized cacti other as husband and wife just as much today to day as ever what did slie mican she was married 1 in ID a martof part of her evidence she testified that feat there is a great deal of dif difference ferenci be tween twee nour our ie relations lations the past year and eleven years a ago 0 11 yet she considers herself as his wife to day dav just asmuth as 0 ever although she sh lives entirely by herself in jerown tier own house and he has merely called on en her as a wend briend she could have meant only that spiritual uhl and relie religious lin aie me which according to ner aud and h bis I 1 b belief f is s c created by one of their their marriages according to the ladof their heir churco alq may MAJ be wholly diar from froid any c carnal arnal relation arany or acy cohabitation although they hold that it sanctified sanctifies the the carnal relation eleanor snow 1010 married 35 years ago in nauvoo resides in her own house ho lived in company with wita harriet and and sarah mr snow lives across the block andaas and has lived there about four years in IM 1885 mr snow called on her bet for a few minutes two or three times she says 1 I guess I 1 recognized hida atmas my mv hu husband and he me as a a wife during 1885 she could not have meant a Te recognition COgnition of an any other than the spir igual and religious religions tie sarah snow married nearly forty years has lived for nearly thirty years at the old homestead aa on main alain street from that time cimei she was as mar aid tied until about labout ten ao sh she jived elivd with all tim him but nas ha since haa bad a place abrade by herself he has not introduced me as his wife for the last ten years as I 1 cau can seinei remember but there has been noless no less the relation pt 91 husband and wife she must have meant the spiritual and re religious ous relation fon I 1 gi minnie nie snow she is the w wife P with whom he has lived exclusively V for or fo four u r years in the full sense of cohabitation she says flenow all the other ladies who have testified they are his wives she too could only have h a v e meant wives orives according to their religious belief she testifies fits again he has not to my any knowledge publicly claimed these other women as |