Prosecution for the murders at Mountain Meadows became possible only when, in 1874, Congress passed the Poland Act. The Act sought to eliminate the nearly total control the Mormon Church had over Utah's justice system. The Poland Act redefined the jurisdiction of Utah courts, restricting the formerly powerful probate courts, which had taken no action concerning the 1857 massacre, to their traditional jurisdiction. The Act also eliminated the territorial marshal and attorney, giving their duties to a U. S. marshal and U. S. attorney. Finally, the Act opened up Utah juries to non-Mormons.
The first grand jury called under the new law, in September 1874, indicted Lee, Dame, Haight, Higbee, Klingensmith, Stewart, and three other men for the deaths of members of the Fancher Party at Mountain Meadows in 1857.
From the Utah History Research Center:
Each Utah county had a probate court presided over by an elected judge. No federal circuit court was ever established in Utah or with jurisdiction over Utah. Many litigants, especially Mormons, took their cases to the probate court rather than before the federally appointed judge of the district court. The effect was to displace the federally appointed courts with a system of local control. Congress reacted by placing the judiciary firmly under federal control. The Poland Act of 1874 (18 Stat. 253) restricted the probate courts to matters of estates and guardianship, removing all civil, chancery, and criminal jurisdiction. It gave the district courts exclusive jurisdiction for all suits over $300, and it abolished the local offices of the territorial marshal and territorial attorney.
Text of the Poland Act, as proposed:
Mr. POLAND, from the Committee on the Judiciary, which was authorized to report it at any time, reported back, with amendments, House bill No. 3097 in relation to courts and judicial officers in the Territory of Utah.
The bill, as proposed to be amended, was read, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That it shall be "the duty of the United States marshal of the Territory of Utah, in person or by deputy, to attend all sessions of the supreme and district courts in said Territory, and to serve and execute all process and writs issued out of, and all orders, judgments, and decrees made by said courts, or by any judge thereof, unless said court or judge shall otherwise order in any particular case. All process, writs, or other papers left with said marshal, or either of his deputies, shall be. served without delay, and in the order in which they are received, upon payment or tender of his legal fees therefore; and it shall be unlawful for said marshal to demand or receive mileage for any greater distance than the actual distance by the usual routes from the place of service or execution of process, writ, or other paper, to the place of return of the same, except that when it shall be necessary to convey any person arrested by legal authority out of the county in which he is arrested, said marshal shall be entitled to mileage for the whole distance necessarily traveled in delivering the person so arrested before the court or officer ordering such arrest. Said marshal is hereby authorized to appoint as many deputies as may be necessary, each of whom shall have authority, in the name of said marshal, to perform any act with like effect and in like manner as said marshal; and the marshal shall be liable for all official acts of such deputies as if done by himself. Such appointment shall not be complete until he shall give bond to said marshal, with sureties, to be by him, approved, in the penal sum of $10,000, conditioned for the faithful discharge of his duties; and he shall also take, and subscribe the same oath prescribed by law to be taken by said marshal; and said appointment, bond, and oath shall be filed and remain in the office of the clerk of the supreme court of said territory. In. actions brought against said marshal for the misfeasance or non-fiancé of any deputy. It shall be lawful for the plaintiff, at his option, to join the said deputy and the sureties on his bond with said marshal and his sureties. Any processes, either civil or .criminal, returnable to the supreme or district courts may be served in any county by the sheriff thereof or his legal deputy, and they may also serve any other processes which may be authorized by act of the territorial Legislature.
SEC. 2. That it shall be the duty of the United States attorney in said Territory, in person or by an assistant, to attend all the courts of record having jurisdiction of offenses as well under the laws of said Territory as of the United States, and perform the duties of prosecuting officer in all criminal cases arising in said courts; and be is hereby authorized to appoint as many assistants as may be necessary, each of whom shall subscribe the same oath as is prescribed by law for said United States attorney; and the said appointment and oath shall be filed and remain the office of the clerk of the supreme court of said Territory. The United States attorney shall be entitled to the same fees for services rendered by said assistants as he would be entitled to for the same services if rendered by himself. The territorial Legislature may provide for the election of a; prosecuting attorney in any county; and such attorney, if authorized so to do by such Legislature, may commence prosecutions for offenses under the laws of the Territory within such county, and if such prosecution is carried to the district court by recognizance or appeal, or otherwise, may aid in conducting the prosecution in such court. And the costs and expenses of all prosecutions for offenses against any law of the territorial Legislature shall be paid out of the treasury of the Territory.
SEC. 3. That there shall be held in each year two terms of the supreme court of said Territory, and four terms of each district court, at such times as the governor of the Territory may by Proclamation fix. The district courts shall have exclusive original jurisdiction in all suits or proceedings in chancery, and in all actions at law in which the sum or value of the thing in controversy shall be $300 or upward, and in all controversies where the title, possession, or boundaries of land, or mines or mining claims shall be in dispute, whatever their value, except in actions for forcible entry or forcible or unlawful detainer; and they shall have jurisdiction in suits for divorce. When a bill is filed by a woman to declare marriage or pretended marriage void, on account of a previous subsisting marriage of the defendant to another woman, the court, or judge thereof may grant such reasonable sum for alimony and counsel fees as the circumstances of the case will justify; and may likewise, by final decree, make such allowance for the maintenance of the complainant and her children by the defendant as may be just and reasonable. .And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact. Probate courts, in their respective counties, shall have jurisdiction in the settlement of the estates of decedents, and in matters of guardianship and other like matters; but otherwise they shall have no civil, chancery, or criminal jurisdiction whatever; they shall have jurisdiction of suits of divorce for statutory causes concurrently with the district courts; but any defendant in a suit for divorce, commenced in a probate court shall be entitled, after appearance and before plea or answer, to have said snit removed to the district court having jurisdiction, when said suit shall proceed in like manner as if originally commenced in said district court. All judgments and decrees heretofore rendered by the probate courts which have been executed, and the time to appeal from which has by the existing laws of said Territory expired, are hereby validated and confirmed. The jurisdiction heretofore conferred upon justices of the peace by the organic act of said Territory is extended to all cases where the debt or sum claimed shall be less· than $300. From all final judgments of justices of the peace an appeal shall be allowed to the district courts of their respective districts, in the same manner as is now provided by the laws of said Territory for appeals to the probate courts; and from the judgments of the probate courts an appeal shall lie to the district court of the district embracing the county in which such probate court is held in such cases and in such manner as the, supreme court of said Territory may; by general rules framed for that purpose, specify and designate, and such appeal shall vacate the judgment appealed from, and the case shall be tried de novo in the appellate court. Appeals may be taken from both justices and probate courts to the district court of their respective districts in cases where judgments have been heretofore rendered and remain unexecuted; but this provision shall not enlarge the time for taking an appeal beyond the periods now allowed by the existing laws of said Territory for taking appeals. Whenever the condition of the business in the district court of any district is such that the judge of the district is unable to do the same, he may request the judge of either of the other districts to assist him, and, upon such request made; the judge so requested may hold the whole or part of any term, or any branch thereof, and his acts as such judge shall be of equal force as if he were duly assigned to hold the courts in such district.
SEC. 4. That within sixty days after the passage of this act, and in the month of January annually thereafter, the clerk of the district court in each judicial district, and the judge of probate of the county in which the district court is next to be held, shall prepare a jury-list from which grand and petit jurors shall be drawn, to serve in the district courts of such district, until a new list shall be made us herein provided. Said clerk and probate judge shall alternately select the name of a male citizen of the United States who has resided in the district for the period of six months next preceding, and who can read and write in the English language; and as selected, the name and residence of each shall be entered upon the list, until the same shall contain two hundred names, when the same shall be duly certified by such clerk and probate judge; and the same shall be filed in the office of the clerk of such district court, and a duplicate copy shall be made and certified by such officers, and filed in the office of said probate judge. Whenever a grand or petit jury is to be drawn to serve at any term of a district court, the judge of such district shall give public notice of the time and place of the drawing of such jury, which shall be at least twelve days before commencement of such term; and on the day and at the place thus fixed, the judge of such district shall hold an open session of his court , and shall preside at the drawing of such jury; and the clerk of such court shall write the name of each person on the jury-lists returned and filled in his office upon a separate slip of paper, as nearly as practicable of the same size and form, and all such slips shall, by the clerk in open court, be placed in a covered box, and thoroughly mixed and mingled; and thereupon the United States marshal, or his deputy, shall proceed to fairly draw by lot from said box such number of names as may have previously been directed by said judge; and if both a grand and a petit jury are to be drawn, the grand jury shall be drawn first; and when the drawing shall have been Concluded, the clerk of the district court shall issue a venire to the marshal or his deputy, directing him to summon the persons so drawn, and the same shall be duly served on each of the persons so drawn at least seven days before the commencement of the term at which they are to serve; and the jurors so drawn and summoned shall constitute the regular grand and petit juries for the term for all cases. And the names thus drawn from the box by the clerk shall not be returned to or again placed in said box until a new jury-list shall be made. If during any term or the district court any additional grand or petit jurors shall be necessary, the same shall be drawn from said box by the United States marshal in open court; but if the attendance of those drawn cannot be obtained in a reasonable time, other names may be drawn in the same manner. Each party, whether in civil or criminal cases, shall be allowed three peremptory challenges; and in the trial of any prosecution for adultery, bigamy, or polygamy, it shall be a good cause of principal challenge to any juror that he practices polygamy, or that he believes in the rightfulness of the same. In criminal cases, the court, and not the jury, shall pronounce the punishment under the limitation prescribed by law. The grand jury must inquire into the case of every person imprisoned within the district on a criminal charge and not indicted; into the condition and management of the public prisons within the district; and into the willful and corrupt misconduct in office of public officer’s of every description within the district; and they are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records within the district.
SEC. 5. That there shall be appointed by the governor of said Territory one or more notaries public for each organized county, whose term of office shall be two years and until their successors shall be appointed and qualified . The act of the Legislative Assembly of the Territory of Utah entitled "An act concerning notaries public," approved January, 17, 1866, is hereby approved, except the first section thereof, which is hereby disapproved: Provided, That wherever in said act the words “probate judge" or "clerk of the probate court" are used, the words “secretary of the Territory" shall be substituted.
SEC. 6. That the supreme court of said Territory is hereby authorized to appoint commissioners of said court, who shall have and exercise all the duties of commissioners of the circuit courts of the United States, and to take acknowledgments of bail, &c.; and, in addition, they shall have the same authority as examining and committing magistrates in all cases arising under the laws of said Territory as is now possessed by justices of the peace in said Territory.
SEC. 7. That the common law of England, as the same is defined and modified by the courts of last resort in those States of the United States where the common law prevails, shall be the rule of decision in all the courts of said Territory so far as it is not repugnant to or inconsistent with the Constitution and laws of the United States and the existing statutes of Raid territory.
SEC. 8 . That the act of the territorial Legislature of the Territory of Utah entitled "An act III relation to marshals and attorneys," approved March 3, 1852, and all laws of said Territory inconsistent with the provisions of this act, ate hereby disapproved. The act of the Congress of the United States entitled "An act to regulate the fees and costs to be allowed clerks, marshals, and attorneys of the circuit and district courts of the United States, and for other purposes,” approved February 26, 1853, is extended over and shall apply to the fees of like officers in said Territory of Utah.
Legislative Debate on the Poland Act in the House (June 2, 1874):
Mr. Speaker, I shall take but a very few moments in explaining this bill. I should be very glad to give more time and have a more extended discussion of it than the condition of business in the House will at this time allow.
The bill that has been presented by the Judiciary Committee is mainly remarkable for its moderation when compared with previous bills that have been before the House upon this vexed subject of the Territory of Utah. Every gentleman in the House knows more or less of the history of this Territory, of its very peculiar origin and settlement and the difficulties that have attended the execution of the law there. While that territory was aloof from all the rest of the United States, while it was almost inaccessible, the officers of the United States who were sent there were at times driven away; they were never allowed to exercise any authority as officers of the United States over that Territory. I have no time to go into the history of those matters. Gentlemen have doubtless given them attention; and if any gentleman desires particular information on that subject, I would refer him to the debates that took place in this House and the Senate upon this subject four years ago, and also to documentary evidence connected with the contest for the seat as Delegate of that Territory four or five years ago, in which all the facts and the whole history of this subject are given.
Since the building of the Pacific Railroad and since the discovery of mines in Utah which have induced an influx of population termed there" Gentiles," the state of things in that Territory bas been somewhat different from what it was at an earlier period. The ruling powers in Utah have not ventured within a few years to drive out the United States officers or to molest them personally; but having' the whole power of the local Legislature, they have contrived effectually to checkmate the authority of the United States officers. We send out a district attorney of the United States; the territorial Legislature Of Utah, filled entirely by Mormons controlled entirely by Brigham Young and the" twelve apostles," elects a territorial attorney general and invests him with full power and authority. We send out a United States marshal; this territorial Legislature elects a territorial marshal investing him with full power; and although two or three years ago the supreme court of that Territory decided that this marshal was illegally appointed and tl1at the office was vacant, yet in spite of the supreme court and it’s decision, that territorial marshal continues to hold the office until this day and to execute his authority.
Mr. CROUNSE. Will the gentleman allow me a single remark?
Mr. POLAND. Not a word. We send out United States judges to hold court in that Territory; the territorial Legislature elects probate judges in the various counties and invests them with full power and authority in all judicial matters—in all cases civil and criminal, law and equity. Men are tried for murder in the probate court. So that by this duplication of all the authorities that we send out into that Territory, the power of the United States is effectually checkmated and all its officials are the merest figure-heads.
Now, Mr. Speaker, the object of this bill is to stop this proceeding, and to put the legal machinery in motion in that Territory: That is the whole scope and purpose of the bill; and as I have but a few moments, I will call attention briefly to US provisions. It provides in the first section for the exercise of the duties and powers of the United States marshal; and for the purpose of enabling him to execute the duties of his office it provides that he may appoint deputies who are to give bonds, &c. To that section there is a written amendment which is now a part of the bill, in which, in order that it may not be said on the part of the Mormon population that they have not officers of their own persuasion to serve process if they please, we have provided that the sheriffs of the several counties may serve any process returnable to the district or any other court within their respective counties.
The second section of the bill provides for the performance of duty by the United States district, attorney, who is authorized to appoint assistants for that purpose; but to this also we have added, as in the first section, a provision that the territorial Legislature may provide for the appointment of a prosecuting attorney in every county who may prosecute for all offenses under the laws of the Territory; and if any of those cases go by appeal, or otherwise, into the district court, this local attorney may be associated in the prosecution of those cases in that court.
The third section relates to the respective jurisdictions of the courts and giving jurisdiction to the district courts which are held by the judges appointed by the President, and taking away the jurisdiction of the probate courts; that is, confining the jurisdiction of these probate courts to the proper business of the settlement of estates.
And I think the gentleman who sits here as Delegate of that Territory knows as well as I know the Supreme Court have agreed upon a decision, and it was only deferred in consequence of the pendency of this bill, wherein they have decided the territorial Legislature had no authority to confer this kind of jurisdiction which these probate courts have heretofore exercised ; that the conferring of general, legal, civil, and criminal jurisdiction upon the courts was a usurpation and their acts are void .. We provide in this bill for taking away that jurisdiction from these probate courts, but at the same time we have taken care to validate the proceedings which have become executed.
The fourth section, Mr. Speaker, provides for the selection of jurors, and upon this we have had great difficulty, the bill, as originally reported from the committee, contains the provision offered by the gentleman from Pennsylvania [Mr. CESSNA] as a substitute for the present fourth section. We provided the district judge and clerk and marshal should select two hundred names from which the jurors were to be drawn. The committees were impressed with this idea that a jury should be drawn from the body of the people, and we were not satisfied with a provision which would put the whole power of drawing juries into the hands of persons who were not Mormons and who might be hostile to them. Therefore we have substituted the present provision of the fourth section that the clerk of the-district court and the judge of probate of the county where the district court sits shall select a list of two hundred names, each selecting the names alternately, so the fair prospect would be that one-half of the two hundred names selected would be Mormons and the other half would not.
We have then provided that the drawing of the jurors shall be in open court; shall be public, so everybody may have an opportunity to see it is fairly done. The majority of the Judiciary Committee thought this provision was one nobody could complain of·one which would be entirely fair to all parties.
But, in addition to that, we have it provision that in any prosecution under the law of Congress .against polygamy, the fact of a person's practicing polygamy or believing in the rightfulness of it should be good cause of challenge to his sitting on a jury to try that sort of offense…
Mr. CROUNSE. Mr. Speaker, as a member of the Committee on the Territories I have had some opportunity to consider the questions involved in this bill, and I did hope that the opportunity would present itself when I might present to the House some of the considerations which are here involved and which relate to the details of this bill. In the consideration of a question so important as this the House cannot afford to be swayed or governed by passion or prejudice. Standing up here in defense of what I believe to be a proper system of law for the government of this Territory, I wish .to disclaim in advance any disposition to defend the system of polygamy. I am not here for that purpose, but I am here to join hands with all who wish to put down this system by proper and legitimate means.
Sir, we should not confound this question of polygamy with the question of framing a proper system of laws to govern the Territory of Utah. Our action upon this bill will become a precedent for the future. If to-day we can under the guise of an assault on Mormondom frame a system of laws which in the future may be evoked as a precedent in order to oppress people of other Territories, it would be indeed a dangerous step for us to take. I regret, sir, the sentiment that I see displayed around me. Within the hearing of my voice, when I was contending here that this bill should be submitted to proper consideration by the House and that the previous question should not be insisted on without full discussion of its several provisions, I heard gentlemen say that they did not care what was in the bill; that they were going for it anyhow. Sir, if we act in such a spirit as that, what hope is there for any people who are to be run down by the United States Government"
Upon this question in relation to the government of the Territory of Utah the gentleman from Vermont [Mr. POLAND] seems to have identified himself with the subject from the very outset. The annals of Congress show that each session a "Poland bill" has been introduced. It is generally introduced on the first day of the session, and is referred to the Committee on the Territories and to the Committee on the Judiciary. It seems that this gentleman has taken, in familiar language, "the job" of fixing up the affairs of Utah. .And when I respectfully asked the liberty to propound a question while the gentleman was making a statement here, he found it convenient to deny me the right of propounding interrogatories or correcting what I regard misstatements, when he would tolerate other gentlemen whom he knew to he in sympathy with the him: The gentleman from Mississippi [Mr. McKEE could get up and interrogate him at pleasure, and it was entirely convenient and pleasant for this to be done; but the gentleman knew from my connection with the bill that it would perhaps not be profitable to tolerate any questions on my part.
Mr. POLAND. I certainly intended no discourtesy to the gentleman. I had only fifteen minutes in which to explain the bill, and I had no time to yield for interrogatories. If the language I used to the gentleman appeared to be discourteous, I beg his pardon.
Mr. CROUNSE. I accept the apology, but the facts are there and the inference can be drawn. When I wanted to make an inquiry and to correct a misstatement, at that time the gentleman could not tolerate a question; no, sir; not a bit of it. But when others propounded inquiries, then there was opportunity, and a disposition to allow them to do so.
Now, in order to make this bill palatable to the House, if I may use the term, it must be prefaced with some imaginary grievances, or the statement of a condition of affairs which really does not exist. It becomes necessary to refer away back to the early history of this people, when they were isolated, away off, and when they had imposed and inflicted upon them United States officials who by their arrogance became intolerable. At such a time they may have rebelled, and such circumstance must be made a pretext for calling forth action on the part of Congress to-day. But I say look over the Territory of Utah to-day and see where is the rebellion which is talked of here, where is the defiance of law. Canvass and scan the organic ·act organizing the Territory and by which the people are allowed to make laws for themselves. Look over those laws and compare them with the laws of any other Territory of the United States, and then see where they fall short. Not one word is brought forward here, beyond general assertion that things are all wrong there, for the foundation of this action on the part of Congress.
The gentleman says that while the United States appoints its marshals, the Territory; in defiance of law, appoints its marshals. Why is this the office of United States marshal is as distinct from the office of territorial marshal as is day from night. Their offices run in different directions. One is charged with the execution of the writs, processes, etc. emanating from the United States courts and in United States cases. I have the record of a case here where the judges who were sent out to Utah attempted to set aside the territorial marshal. That Territory saw fit under its laws to appoint a marshal; for what! For the disposition of matters arising under their laws, and in no way in conflict with the laws of the United States.
Now, that they have a right to do. If that is denied them, then one of the first principles of a republican system of government is gone and wiped out. When a people in a Territory cannot be accorded the right to enact their own laws, those that relate to themselves, as long as they do not conflict with the Constitution of the United States, and if they cannot select .their own offices to execute those laws, then I say you are striking down the very first principles of American liberty. You are taxing men without representation, you are demanding obedience to laws which they have no voice in making, and you foist upon them officers to execute the laws under no responsibility to the people governed. It is a proposition unheard of-in the history of American law-making of jurisprudence…. I tell you, Sir, it will not do for this Congress to assume a, mock regard for particular laws while unmindful of others. Let every man turn his sight inward; let him stand before the forum of his own conscience; let him ask himself whether he has any religious convictions at all. Men who have none at all are perhaps too apt to be intolerant toward those who have. I say that while I deplore the system prevailing in Utah, while I am not in sympathy with that form of religion, while I desire and hope that in the progress of civilization it will be wiped out, I hope the American Congress will not act hastily in this regard.
As I wish to be sparing of the time of the gentleman from Utah, [Mr. CANNON], I can only say that I did hope to assail this bill in its details. There are several views I would like to submit in which I am satisfied this House would concur with me. I am satisfied that this House would not upon deliberation enact the seeming .anomaly of having one set of people make laws while officers appointed by another and distinct authority are to execute those laws. Why, sir, by this mode of proceeding you strike down the very law-making power itself. If those people cannot have their own marshals and their own prosecuting attorneys to proceed against offenses arising under their own laws they will make no laws. They will wipe out their laws entirely if they cannot have a voice in executing them. Examine all the laws that have been passed since the organization of this Government, and where will you find that any like this has been enacted?
Mr. ELDREDGE. The gentleman will allow me to suggest to him that the marshals selected by the local authorities of Utah sustain precisely the same relation to that Territory that our sheriffs bear to the respective States. There is no difference or distinction in that regard.
Mr. CROUNSE. Precisely That is what I wish to have understood by the House; that we are asked to enact a law which is in defiance of all precedents in our legislation, and for no sufficient reason; because the system of polygamy, if it is to be assailed at all, is to be assailed under the laws of the United States. Congress should not, and I say cannot in consistency with the principles underlying our institutions, enact laws which will thrust upon that people a set of Government officials responsible to no one except the Government here at Washington.
I say that this people does not deserve such treatment. Aside from the question of their religion they are entitled to the same rights, immunities, and privileges which would be claimed in behalf of any other people. The bill as first brought before the Judiciary Committee contained .the clause my colleague on the committee from Pennsylvania [Mr. CESSNA] has suggested as an amendment ·to its present form. That clause provided the United States judge should himself select the jury. To that I was and am utterly opposed. It did seem to me it would be better to drive this Mormon people out of the Territory without color of law at the point of the bayonet than to establish a precedent of this character, by which the Federal official would be able of his own will to pack a jury against that or any other people; for that. is exactly what the amendment of the gentleman from Pennsylvania if It becomes a law, will lead to. In the state of feeling that has existed in that Territory between the mass of the people and the Federal judges, to give those judges or the clerks or marshals of their courts the right of selecting jurors could not in that community be followed by any other result than the grossest Injustice under the form of law. The committee took the same view I had of this provision. As we first agreed upon the bill, it· provided that a list should be made out of all the citizens in the Territory otherwise eligible who could read and write and that their names should be put into a box, and the jury drawn from that by lot. That provision was subsequently changed to the present provision, by which it is required the probate or local judge shall select one-half and the clerk of the Federal court shall select the other half of the jurors.
Mr. McKEE. How are they selected now in other States and Territories?
Mr. POTTER. In most of the States and Territories by the local officers, I believe; by the sheriffs of the counties in very many of the States, and-by the territorial marshals, I believe, in all the Territories except Utah.
Mr. McKEE. In most of the States they are selected by the marshal. Do you call that packing a jury?
Mr. POTTER. You are speaking of the juries of the Federal courts of the States, where there is no such division among the people. In the South it may be the marshal can now pack juries.
The present bill provides, Mr. Speaker, that the juries shall be chosen one-half by the judge of probate, that is to say by the county judge or local authorities, and the other half by the Federal authority. This perhaps is as fair under the circumstances as it is practicable to make a jury for Utah.
My difficulty with the existing bill is this: on page 10 the House will see that it is provided that in all prosecutions for adultery, bigamy, or polygamy no person shall be entitled to serve on the jury who has a belief in polygamy. As three-fourths of the men who reside in the Territory now do believe in polygamy and practice it, the result will be they will all be absolutely excluded from the juries in such cases, and the jury in all prosecutions for bigamy or polygamy will therefore necessarily be made up of persons who are non-Mormons. I do not see why under such a provision every Mormon cannot be convicted of polygamy, for undoubtedly they are guilty under the Federal statute passed years ago. I do not see, I say, why they all may not be, the whole Mormon people, convicted and locked up under this provision and the Territory be thus left bare to the non-Mormons to take possession of and keep. If I am told that a whole community cannot be punished for violating a law, then the answer indicates the needlessness of passing laws which cannot be enforced. Many years ago we passed a law against polygamy which we never have enforced. Here now is another law which, if it can be enforced, will have the effect of driving these people out of the Territory, leaving the lands to those there who are non-Mormons, and which we propose to enforce by giving to the non-Mormons the control of the juries that may sit upon that question. If polygamy could be broken up by mere law it would have been done before this. At any rate I shrink from doing it by a method which is not calculated to insure that impartial trial by jury which the Constitution guarantees to every citizen.
I have felt, besides, sir, that it could not be long in any event before these people would have to move on; that the railways coming into the country would introduce into it not only new people but new Ideas. In a far-off place like the Salt Lake settlement it was easy to carry out for a time the patriarchal system, and for men who had great families and many wives to provide fort but with the railroad came new ideas and new wants—the shop-keeper, the dressmaker, the milliner, and the modiste. Think, sir, of a man with twenty wives going out of a morning to buy back-hair and crinoline and silk dresses. Nothing could meet the cost of supporting their families in such style, and It therefore seems to me as if these chances will have a certain and growing effect in breaking up this system, so at variance with our race and time. Indeed it seems to me these influences will have more effect in destroying and rooting out polygamy than any legislation we can adopt providing for packed juries, which is in effect the proposition that the gentleman from Pennsylvania recommends as an amendment to this bill.
Mr. E. R. HOAR. I desire to ask the gentleman from New York a single question. I. desire to know whether the Committee on the Judiciary, in reporting this seventh section of this bill, in which they say “that the common law of England, as the same is defined and modified by the courts of last resort in those States of the United States where the common law prevails, shall be the rule of decision in all the courts of said Territory," inadvertently left out the provision that where the decisions differed they should adopt the decision of Vermont?
Mr. POTTER. The distinguished gentleman from Massachusetts, formerly the Attorney-General of the United States, and especially familiar with the laws and statutes of the United States, should address this question to the gentleman from Vermont reporting this bill, who can answer it better than I can. He must bear in mind, however, that -this Territory was originally a part of Mexico, and that it has been claimed the common law did not apply to it.
I do not, Mr. Speaker,·so much object to the other provisions of this bill; my main objection is to the amendment moved by the gentleman from Pennsylvania, and to that provision in the bill as reported that in all prosecutions for polygamy no man shall be a juror who believes in or practices polygamy. I understand, however, that my friend from Vermont [Mr. WILLARD] proposes to offer an amendment which will cure that evil, and I hope his amendment will be admitted to be voted on and will he adopted, and that the amendment offered by the gentleman from Pennsylvania will be voted down.
Mr. CANNON, of Utah. Mr. Speaker, the reasons which have been assigned by the gentleman who has introduced this bill for its passage are that in the Territory of Utah the people have chosen a territorial marshal, who he says, has endeavored to wrest power from the United States marshal, and have also elected a territorial attorney who has endeavored to interfere with the duties of the United States district attorney, and also that they have conferred upon their probate "courts concurrent jurisdiction with the district courts for the Territory.
If these be the reasons for this legislation, then the same reasons exist in favor of similar legislation for the Territories of the United States. The Territory of Utah should not be made an exception in this respect. In every Territory, as at present organized, they have their local officers, their sheriff, who are the ministerial officers of their courts and who execute processes; they have their county attorneys who act for the Territory and in execution of its laws.
They also have probate courts, and in some instances possessing quite an extensive jurisdiction; sufficiently extensive to be open to the same objection that is made to the jurisdiction of the court in the Territory of Utah. This is so in respect to the Territory of Colorado, and it has been the case with other Territories. Utah is not the only Territory which has amplified the jurisdiction of the probate courts.
One of my objections to the bill under consideration is that it is local in its application. If there be any reason for the enactment of a law like this, the same reason exist in regard to all the Territories as well as Utah.
It has been said that in the Territory of Utah United States judges have been driven away, have been compelled to flee. I challenge the gentleman who made that statement to adduce a single item of evidence to sustain the charge. In 1867 Judge Drummond, who had conducted himself most infamously in the Territory, left it and afterward circulated all manner of charges in the public prints against the people of Utah, among others accusing them, I believe, of using violence and driving him from the Territory. That charge was widely circulated, but upon an examination all his statements were disproved.
To return to the probate courts; was it wise and proper for the Legislative Assembly of Utah to confer upon the probate courts the jurisdiction complained of?
It will be remembered that what is now the State of Nevada once formed a part of the Territory of Utah. At the present time that Territory extends three hundred and sixty miles north and south and two hundred and sixty-four miles east and west. Its inhabitants are settled mostly in towns and villages. For this Territory and population Congress has provided three courts: first district court, held at Provo; second district court, held at Beaver; third district court, held at Salt Lake City. Of these courts the first two mentioned hold one term a year, and the last mentioned two terms a year. The time during which the first and second district courts have been in session, up to within the last three years, will not average two days in each year, and there has been a year or more at times when no district court has been held outside of Salt Lake. The district court in Salt Lake has been in session but a small portion of the time.
Some of the judges appointed in years past to the first and second districts never saw the places appointed for holding their courts. Recently the judges of these districts have held courts regularly in their districts, and the judge of the first district has a residence in his district, and probably the judge of the second in his also; but of this I am not certain. If he has, he is, I believe, the first judge who has resided there. The probate courts had therefore of necessity to be endowed with extensive jurisdiction or the people would have been compelled, to punish crime, to have had recourse to lynch law. But supposing these courts had been in regular session; Saint George, a city of two thousand inhabitants, possessing large agricultural and manufacturing interests, is situated in the southern portion of the Territory in the second judicial district, and one hundred and twenty miles from Beaver, where the court is held; the facilities for traveling would enable a citizen of Saint George to arrive at Beaver in about three days. Would it not, under these circumstances, be highly inconvenient for him to transact any business in the district court? A citizen of Boston can travel to Chicago quicker and cheaper and more comfortably than a citizen of Saint George can travel from his home to Beaver; yet the citizen of Boston would consider it something of a hardship should he be obliged to transact all his business at Chicago, and he would not be considered unreasonable should he ask for some
Local tribunal other towns in the Territory are similarly situated to that of Saint George, and; without local courts of some kind they are wholly without protection by judicial authority in property or person. Under these circumstances, can it be said that the Legislature of Utah acted unwisely in conferring jurisdiction on the probate courts? Would they not have fallen far short of their duty had they neglected to throw around their infant settlements, so widely separated, such protection as the probate courts have afforded?
So far as the administration of justice in these courts is concerned, I have had forwarded to me from the Territory a statement of the cases which have been tried by the ordinary juries of the Territory in the probate court of Salt Lake County for several years. Out of a list of eighty-four civil cases, to which Mormons and non-Mormons were parties, fifty-nine were decided, in favor of non-Mormons and dissenting Mormons, and twenty-five only decided in favor of Mormons, showing how fair the administration of justice has been in that Territory by juries and the probate courts. The parties to sixty-two cases were non-Mormons and dissenting Mormons; and yet it is urged as a complaint against these courts that the judges are Mormon bishops, &c.
Sir, there is probably no officer in Utah Territory if he belongs to the Mormon people, who does not hold some position in the church. The Mormon people do not believe in salaried preachers; but they believe it to be the privilege of every worthy man of their organization to be an elder, and, when called upon, to make himself useful in preaching. Doubtless many gentlemen about me who have visited Utah Territory will recollect, if they passed a Sabbath there, that elders were very frequently called from the body of the congregation to preach from the stand without any preparation whatever. Bishops, probate judges, men of different vocations in the community, are thus called upon to speak to the people. So that if you say that a man must not exercise political functions in Utah because he is an officer in the church you exclude from all offices in the Territory every respectable Mormon.
Sir, I repeat there are no reasons, unless they be religious, why there should be special legislation of this character for Utah. If it be the intention to strike a blow at the Mormon people, to exclude them for exercising the power of self-government, of controlling the country which they have redeemed and made valuable, of depriving them of the right to hold office, if it be the intention to wrest the government of the Territory out of the hands of the majority and give it into the hands of others who are the minority, then this bill will answer the purpose designed. But in attempting to force this bill through this House do not let it be said that there are legal reasons for its passage. The legal reasons for its passage do not exist.
Sir, you doubtless remember that at the session of the Legislature of Utah held some few months ago a resolution was adopted asking Congress to appoint a congressional commission to visit Utah and examine into the condition of affairs there. It had been alleged that legislation by Congress was necessary in consequence of the usurpations of the people who are in the minority in that Territory. They by that, action plainly said they. are not afraid of investigation, and are quite willing to have their affairs thoroughly examined, and if there be wrong-doing on their part to have it shown up ; but they also desired to have the Conduct of their accusers examined, that a fair, impartial body of men might judge between them.
Mr. McKEE. May I ask the gentleman if of those members of the Legislature who signed the petition about the violation of the laws all but three are polygamists and living now in violation of the law?
Mr. CANNON, of Utah. Then the more reason for them to shun investigation. If they are all polygamist, and therefore all sinners, then the greater reason why they should shun investigation.
Mr. McKEE. Is not that true? I have the list here.
Mr. CANNON, of Utah -The very fact that they invited this investigation shows that they are not afraid to meet the light of day and have investigation of the fullest and freest character. There have been difficulties doubtless in Utah Territory as there are in other Territories: There is no- Territory of the United States today in which there are not difficulties and disputes between the local and Federal authorities. The condition of affairs in the Territories is of so anomalous a character and. so painful, that no people can live under a territorial form of government without irritation arising, between the people or their local officers elected by themselves and the officers in whose appointment they have no voice. Examine all the Territories, and you will find this to be the case. The only difference between Utah and the other Territories is that her people, having an unpopular religion, afford her enemies a better chance to talk against them. - .
Mr. Speaker, who are the men who have brought this bill to this house and asked for its passage? Is this the product of the wisdom of the Committee on the Judiciary? No, sir; this bill is but one of seven or eight bills which have been brought to Washington by men who are interested in getting legislation passed through Congress. It is not a bill originating in the Committee on the Judiciary or in the Committee on the territories, or in any other committee which has had these bills before it. Who have been the men who have sought to get this bill and others like it passed by Congress? The men most interested in its passage. They are the persons who have sought to get it through.
Since the commencement of this Congress we have had the United States marshal of that Territory on the floor of this House button· polling members and doing all in his power to push forward this bill and to secure its enactment into law. We have had, too, the United States district attorney' stealing on this floor whenever he could get a chance for the same purpose. These men have been here constantly pressing upon members of the Judiciary Committee, upon members of the Committee on the Territories, and upon gentlemen who are not on either of those committees the passage of this bill.
Mr. POLAND. I presume the gentleman does not mean to misstate; but neither the district attorney, the marshal, nor any one else from Utah has had anything to do with the preparation of this bill except a gentleman named Whitney, a lawyer of Salt Lake City, who holds none of those positions and who assisted me in the preparation of the bill. None of those other gentlemen had anything to do in reference to it.
Mr. CANNON, of Utah. I am very glad, Mr. Speaker, to have the gentleman make this statement, because I have it in my power to prove that the district attorney did before the Committee on the Territories claim the authorship of this bill.
Mr. POLAND Then he claimed what was not true.
Mr. CANNON, of Utah. I knew that Mr. Whitney had framed the bill and presented it, as I understood him, (for he told me so himself,) to the gentleman from Vermont, [Mr. POLAND.] But the district attorney did state—and doubtless the members of the-Committee on the Territories well remember the statement made by him in their committee-room—that he had helped to get up this bill, the bill before the Committee on the Judiciary, called "The Poland bill." This is the class of persons who have been urging this measure all the time. Has any capitalist or any merchant from Utah, out of the thousands of non-Mormons who are said to be in that Territory, come here to urge the passage of this bill? Has there been any deputation from any of those men? I am told there is a list of men, forty-five in number, who have urged the passage of this bill. An analysis of that list shows that a portion of these are men who have once been Mormons, and who have an unconcealed dislike for their former brethren; the others are men who are dependent upon them for trade; and others who are-lawyers, and desirous to please the court of the third judicial district.
But it may be said, "If these capitalists and other influential people of Utah do not desire the passage of this bill why have they not in person or by a committee or by petition come to the House and urged that it be not passed?" The reason is obvious. These men have important interests in Utah. If they have not cases in court, they do not know how soon they may have. It would require more than ordinary courage, therefore, for such men to come forward and take part with the weak side, however strongly their feelings may lean in that direction, especially with such a judge in the third judicial district as now sits there.
It will be observed also that the parties who are here urging the passage of this bill are those who are interested in its success. If this bill should become a law, the office of the United States district attorney in Utah would be worth as much as that of the President of the United States; the office of marshal of' Utah Territory would be equally valuable. What does this bill do? In the first section it sweeps away twenty-one sheriffs, and substitutes for them a United States marshal, and twenty-one deputies in the counties; that is a deputy for each county. What does the second section provide? It gives to the United district attorney the entire control of the prosecutions in the Territory, not only under the United States laws but under the local laws.
With the feeling there is on this subject and with such a district attorney as we have now, who has shown what his designs are, we can readily understand what the fate of the Mormons would be if this bill should be made a law, especially when they are not allowed, if they even believe in the rightfulness of polygamy, to sit upon a jury, and when general reputation is made evidence in criminal prosecutions. Let an unprejudiced jurist-examine this bill, especially if he has had experience in the Territories, and he cannot fail to perceive how dangerous and subversive of all republican government it is. I cannot believe that there is a member of this House who would vote for such a bill to be enforced against any other people than those who reside in Utah Territory. Let gentlemen examine it and try and forget that it is designed to be put in operation against the Mormons, and then ask themselves if they would be willing to have it go upon the statute-book.
[Here the hammer fell.]
The SPEAKER. The forty-five minutes allowed to the gentleman from Utah have expired.
Mr. CANNON, of Utah. I trust the House will grant me more time.
It is the first time that I have appealed to the House for any courtesy of this kind.
SEVERAL MEMBERS. Go on.
Mr. POLAND. Mr. Speaker. I have no sort of objection to extending the gentleman's time so long as the House may choose to extend it. I have already yielded to him and to those to whom he might choose to yield three-quarters of an hour, taking for myself only fifteen minutes in opening and fifteen minutes :for closing. But I must object to an extension of the gentleman's time unless the same additional time that may be allowed to him shall be allowed to me.
The SPEAKER. How much time does the gentleman from Utah desire? .
Mr. CANNON, of Utah. I do not think I shall require much longer time. I submit this to the House.
Mr. POLAND. I do not wish to be considered as objecting to the gentleman's proceeding, but I wish the same extension given to the committee that is given to him.
The SPEAKER. If the gentleman from Utah will specify the time he wishes the Chair will submit the request to the House
Mr. CANNON, of Utah. I would like to have fifteen minutes longer.
The SPEAKER. The gentleman from Utah asks for fifteen minutes, and the gentleman from Vermont asks that the same time be given to the committee. If there be no objection these requests will be granted together. The Chair hears no objection, and the extensions of time are granted.
Mr. CANNON, of Utah. Mr. Speaker, the condition of Utah Territory is such that I can speak of it with a good deal of pride and without any fear in relation to the result of any examination to which its affairs may be subjected. "
Utah, Territory has now been settled nearly twenty-seven years. On the 24th of the coming month we shall have been there twenty-seven years. To-day we are out of debt. The counties, the cities, and he Territory are entirely free from debt. There is not a bond of any kind afloat. The affairs of the Territory have been managed in the most economical manner. The aim has been to have taxation as light as possible. There are those who wish a change, who desire to obtain the control of affairs, and this bill is in their interest. It is easy to imagine what the result would be if it were to pass and the control of the Territory were taken out of the hands of those who at the present time have the majority there. What an excellent field there would be for—I was going to say plunder, and I do not .know that it is too strong a word to use. Experience elsewhere has shown how easy it is to issue bonds and to involve a community inextricably in debt.
It is against this that my constituents protest. They wish the majority to govern. They govern elsewhere, why not in Utah? Why aid the minority by throwing congressional influence and legislation against the majority? What have the majority done that this must be inflicted upon them? It has been said, let the railroad be built across the continent and the Mormon power will soon be broken. Then it was said, let mines be discovered, so that emigration can flow in, and the overthrow of the Mormons will then be assured: The railroad has been built, mines have been opened, emigration has flowed to Utah, churches and schools have been built and organized—I believe there are five or six different denominations busily engaged there—and: yet there is a class who are not satisfied. The overthrow of the majority in Utah has not been accomplished as they hoped. They now want Congress to aid them by drafting hostile legislation against this majority, and thus wrest the control of affairs from their hands.
Sir, it is but another scheme for robbing that people, and it is hoped it can be done under the guise of law. Members should hesitate before they cast their votes for such a bill. Examine well what the results of such legislation are likely to be. Let members ask themselves how they would like such legislation enacted for them if they were objectionable for religion or any other reason. Put yourself, sir, in the condition of the Mormons, and ask yourself how you would like to have such a law as this passed against you.
It may be said the Mormons are heretics, but this does not justify Congress in making this bill a law. Such legislation never, in the history of the world, put down heresy. If such legislation can, then all history belies itself, for history bears testimony that no such measure as is proposed in this bill ever was successful in accomplishing such an object. It did not in the case of the Huguenots; it did not in the case of the Puritans; it has not in any case, and it never will, never, while the earth stands and human nature possesses its present features, unless, indeed, you stamp a religion out by destroying all its believers.
What is now Utah Territory when first settled was a country that nobody desired. When my constituents went there it was supposed they would either fall victims to the Indians or starve to death. But after struggling for years they succeeded in transforming it from a desert to a place of beauty. But this was only done by immense sacrifice and toil. Some of the settlements of Utah Territory have had their entire crops swept off five years in succession by grasshoppers. In 1855 the crops of the entire Territory were destroyed by those insects. I do not think I overstate the case when I say, remote as Utah then was from all help, that of any other community similarly situated hundreds would have starved to death and their settlements would have been abandoned. It was the religious sentiment, prompting them to divide with each other to the last mouthful that saved them.
Mr. Speaker, there was no talk then about enacting laws for the territory of Utah. No; the Mormons could struggle on and perish if they chose, and. these zealous patriots who now profess such interest for Utah cared nothing about her. It is only since mines have been discovered, and city property become valuable, and railroads have been constructed—it is only since it was found that the Mormons had valuable possessions that this interest taken by the present crusaders against Utah. You remember, Sir, that four years ago it .was said that unless Congress interposed there would be bloodshed in that Territory. An effort was made to convince Congress that unless legislation was enacted for Utah bloodshed would be inevitable. Four years have passed, and that Territory to-day is as peaceful as it was at that time.
But it is said that the courts are locked up and cannot execute, the laws because of the difficulty of obtaining jurors. Sir, that is no more the case now than it has been for a score of years. Under the present laws of Utah courts have been held and cases tried for a long succession of years. And were it not for the obstinacy of the judge of the third judicial district there would be no dead-lock there at the present time. In the other districts of Utah courts have been held and juror's have been summoned, But it has been published in a daily paper of large circulation in Salt Lake City, the editors of which are responsible men, that the judge of the third district had said in substance "he would carry his point with Congress if he ruined the entire legal business of the Territory?"
The question as to which is the rightful officer of the courts under the laws of the Territory—the United States district attorney or the attorney-general of the Territory—has been submitted to the United States Supreme Court, and the decision has been in favor of the officer created by territorial statute. The case of the United States Marshal vs. The Territorial Marshal is an analogous one. In two instances the Supreme Court of the United States have sustained the local authorities of the Territory in cases which have been carried up from this court which now complains of being locked up. The United States Supreme Court has sustained the laws of the Territory. This does not look as though the people of the Territory were usurping authority or giving their officers power not guaranteed by law and usage. Instead of a usurpation of power on the part of the Legislative Assembly of Utah, or on the part of an officer created by their act and against the United States officer, as stated by the gentleman from Vermont., the contrary has been the case—the usurpation has been on the part of the Federal officer, and the United States Supreme Court· has so decided in one of the decisions made upon a case of importance-Clinton against Englebrecht—appealed from the district court to the United States Supreme Court, Chief Justice Chase said:
The theory upon which the various government for portions of the territory of the United States have been organized has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of national authority, and with certain fundamental principles established by Congress. As early as 1784 an ordinance was adopted by the Congress of the Confederation providing for the division of all the territory ceded or to be ceded into States, with boundaries ascertained by the ordinance. These States were severally authorized to adopt for their temporary government the constitutional laws of anyone of the States, and provision-was made for their ultimate admission by Delegates into the Congress of the United States; We thus find the first plan for the establishment of governments in the Territories authorized the adoption of State governments from the start, and committed all matters of internal legislation to the discretion of the inhabitants, unrestricted otherwise .than by the State constitution originally adopted by them.
That was the language used by the Chief Justice in rendering this decision, which reversed, the proceedings of the judge of the third judicial district in the Territory of Utah." Associate Justice Bradley, in another decision recently given, also sustains the territorial laws, and the election of an attorney-general for the Territory by the Legislative Assembly of the Territory. Those two decisions I consider exceedingly important as showing the character of the proceedings in Utah. They show that the people themselves, have maintained the law, have been intrenched within the law, have not sought to transcend the law, but have acted in accordance with the organic "act of the Territory and the laws. passed by the Legislative Assembly of the Territory, and submitted to you for your approval at the time.
I find that I must hurry on. In the short time allowed me I find it impossible to make explanations which should be made to give a correct idea of affairs in the Territory. In the third section of this bill I find this provision:
And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact.
In this connection I call attention to the decision of the United States Supreme Court in the case of Cummings vs. The State of Missouri. It will be found in 4 Wallace, and I will read an extract from pages 325 and 326
By an ex post facto law is meant one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed, or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then required.
This bill proposes to change the rule of evidence, and I submit it comes in conflict with this decision of the Supreme Court in the case I have cited.
Sir, I know the prejudices which exist on this Mormon question.
I know that many men are ready to do anything that may have the effect to destroy what is called Mormonism. I implore members to reflect and not act hastily upon this bill. Such legislation will not destroy that system. Its believers have suffered themselves to be driven from their homes time and time again for their religion. They cannot be convinced by the bayonet; they cannot be convinced by
Mr. WARD, of Illinois. Mr. Speaker, in the somewhat extended discussion that has taken place upon this bill I have been led to think that perhaps false impressions were gaining ground with reference to what the bill is. I desire to call the attention of the House to it for one moment, and to point out, if need be, the fact that so far from this bill being an oppression of this peculiar people with a peculiar religion, worshipping a peculiar god, it is more liberal toward them than is the law in relation to the selection of jurors in many of the other Territories and in almost all the States.
It is true, Mr. Speaker, that when this people, who had been isolated among the vast wildernesses of Utah, were reached by the tide of emigration and civilization sweeping across the continent, and which I hope shall continue to sweep against any form of despotism, any form of religion or faith that attempts to set itself against it—when that people was reached by this tide, of course a conflict sprang up. ·While those people were there by themselves they needed no legislation by Congress, as their representative has said. When our people went out there, as they have gone in great numbers, legislation became necessary. The people who have gone out from among us are developing the resources of that country and are building up there a civilization which we here believe to be better than that of the Mormons, notwithstanding the argument which has been made by the Delegate from Utah in relation to their peculiar faith The population in that Territory is to-day mixed. About ninety thousand of the one hundred and fifteen to one hundred and twenty thousand people of that Territory are followers of the "prophet" and this new religion, worshipers of this to me "unknown god;" for the god that sacrifices women to the lusts of men under the form of a plurality of wives is a god that I do not worship. I belong to no particular faith; I espouse no particular form of religion; I would not in any way-impose unnecessary or improper burdens on that people or any other; but when they stand up in the light of this age and tell me that their religion is better than mine, that their faith is better than mine, that their civilization is better than mine, that their institutions are entitled to protection beyond what our institutions are entitled to, I say "Hands off; I will not oppress you, but there must be fair play."
What are the provisions of this bill? Look at the section which provides for drawing juries. I ask any fair-minded man whether he can object to it, except for the reason given by my colleague on the committee, the gentleman from Pennsylvania, [Mr. CESSNA,] that it contains a degree of sickly sentimentality, a silly dread of touching this peculiar institution represented upon this floor by the gentleman from Utah, rather than an outspoken, honest disapproval of the practices of his church, with a provision for forming juries according to the rules now existing and in force in almost every State and Territory throughout .this broad land?
What does it provide? So far from there being any packing of juries against Mormons, it is a fact—and I should object to it myself for that reason if I objected to it at all—it is the fact that it is almost a packing of juries against ourselves. When I say "ourselves," I mean those who do not believe in blood atonement; I mean those who do not believe in the order of Enoch; I mean those who do not believe in this Latter-Day nonsense, as I see fit to call it; I mean those who do not believe in the sacrifice of one-half of creation to the lusts and enormities of the other half. I do not believe in these things myself, Mr. Speaker. I fully accord freedom to worship God and freedom of religious belief; but I remember in history the enormous crimes which have been perpetrated in the name of religion. It was in the name of religion and it is in the name of religion that the widow mounts the funeral pyre in India. It is in the name of religion that helpless infants are sacrificed in the waters of the Gangos. It was in the name of religion that thousands of human beings were sacrificed to the Aztec gods upon the bloody altars of Mexico. It is in the name of religion to-day, all over the world that bloody, miserable, wicked things are being done. It is in the name of religion these men come here now and defend institutions which appal every honest-minded, pure man in all our land.
I do not speak to this Delegate from Utah as a religionist; I speak to you, sir, as a citizen of the same great country, protected by the same laws I am. I want not your property; I want not your rights; I do not want your wives, and I will not have your institutions; and I insist those who believe as I do shall have fair play in the bright land you have seen fit to curse with a system, called religion, unworthy the darkest days since the Son of God trod the earth.
What does this bill do? It does simply this and nothing more: It provides that every probate judge in the Territory of Utah—although every probate judge there is a Mormon bishop—that each one of them shall be appointed as one of the two men who shall draw those who are to be put into the jury-box; that each judge in his own county shall be one of two commissioners to select the list from which jurors are to be drawn.
Now, gentlemen, away with your sentimentality, your fearful dread of imposing something unusual upon these Mormons. Look at It! I ask gentlemen round about me who are afraid of some infraction of the rights of freemen, of the right of trial by jury, of some right and some privilege of American citizenship, to look and see if we do not give these Mormons every right they can justly claim? But must they draw the juries and. run the courts and do all this business in their own way? That practically is the issue presented to you. I wish that they like their neighbors shall follow the ways of civilization. I do not want you to oppress them, and this bill does not do it. I do not want to wrong them, and you do not by this law. I insist. those who believe as I do—especially when I remember there are written in the laws of the country strong statutes against the crime of polygamy, especially when I remember the practices of those whom this Delegate represents here are such as to shock almost everybody throughout this civilized land—I insist my people, our people, the Gentiles of Utah, shall have their rights also, and be permitted to be heard in the formation of juries and in the administration of the laws.
Now, Mr. Speaker, in the few moments we have to discuss a question of this kind, with such an uneasy audience as one usually addresses here, it is mighty hard to say anything when there is so much to say. I take it I have made one point at least understood by gentlemen here. I trust I have. I might go further, (and I must go a little further,) and say if I were to go outside of what actually appears in the record here I might tell of the enormities of the wicked practices, the murders, the outrages committed in Utah, which would startle everybody.
But let me come back to what this law does. What are we doing to these people? We provide in trials by jury the manner in which the jurors shall be drawn. What next? That the courts of the United States shall have their proper jurisdiction, and that the territorial Legislature shall not in the name of the Mormon god he able to cheat the courts of the United States of the jurisdiction which they ought to exercise there and everywhere else.
What other thing do we do? We provide that it shall be just cause for challenge of a juror in a trial for bigamy or polygamy if the juror believes in or practices polygamy. Do you allow a man anywhere in your courts to sit as a juror in a trial for robbery who believes in or practices robbery? Do you allow a man to sit as a juror in a case of murder who believes in or practices murder? Do you allow a man to sit as a juror in a trial for any crime who believes in or commits that crime? Would you allow a man to sit as a juror on the trial of another man charged with crimes which the juror practices? Sir, such a thing has not been heard of until, with unblushing effrontery, this representative of a deluded people, who worship a strange god, stands up in the American Congress and demands that it shall be allowed. Mr. Speaker, this is carrying the thing- too far, and we ought to forbid it, and can forbid it without any infraction of the rights of American citizens.
I have said almost all I desire to say, and there are but one or two· other matters to which I desire to call the attention of the House. We do not abolish the sheriffs; we do not abolish the county courts; we leave the people of the Territory free to regulate their own institutions in all local and municipal matters. We do not propose to interfere with them in any way. The United States Government has dealt with these Mormons ·with the utmost leniency and indulgence.
We find a man here to-day representing these people who has committed the outrage of violating the law of the land upon the subject of marriage, who is the husband of more than one wife. It seems to be expected by this high priest of the Mormon Church that you should recognize the right of his people to commit this crime in the name of religion. Sir, when it comes to the doctrine of blood atonement and. human sacrifice, I will not for one tolerate such practices in the name of religion. These people may believe what they please, and I will believe what I please; but I insist that their practices shall be consistent with law and civilization.
This bill in no measure or in any particular impairs the rights of this peculiar people. Reference has been made to the fact that the United States district attorney for the district of Utah has been about here. Why, sir, we have had a high priest of the Morman Church here on the floor of this House during the whole session, doing all that be can be early and late, to establish the doctrine of and gain recognition for his Church. What of it? The only question we need to decide is, is this bill just and right? I believe it to be so, and shall vote for it.
Mr. POLAND. Mr. Speaker, the gentleman from Nebraska [Mr. CROUNSE] was pleased to refer to me as having been a leader in reference to legislation in regard to Utah. Sir, until this session of Congress I have never introduced any bill upon the subject, nor have I taken any part whatever in any legislation or any proceeding before Congress in reference to that Territory. It was my fortune two years ago to be called to Utah upon a professional journey and to spend two or three weeks in that Territory. During that time I made the acquaintance of a considerable number of the members of the bar of that Territory, as I went there to attend to a lawsuit. I suppose that it is in consequence of the acquaintance that I made with those gentlemen that they appealed to me in reference to this matter. Four years ago a bill in reference to the affairs in Utah passed this House, I think by a vote of four to one, and I should like to have every gentleman in this House examine that bill and compare it with this, which I agree has been to a considerable extent prepared by me, was introduced by me, and the passage of which is now urged by me. That bill which passed the House four years ago provided, among other things, that in all prosecutions for polygamy the wife should be a witness against the husband; it provided that cohabitation should be prima facie evidence to establish marriage in any prosecution under the law against polygamy; it provided in another section that no statute of limitation should apply to that offense; it provided in another section that no alien who practiced polygamy should be naturalized; it provided that no polygamist should hold any office or be permitted to vote; it provided in another section that no polygamist should receive any benefit under the homestead and pre-emption laws. Another section provided that the probate judge, the sheriff, the justices, and the judges of election should be appointed by the governor of the Territory and should be removable by him; another section provided that in any prosecution for polygamy where the defendant absented himself from the Territory his property might be confiscated; and it wound up with a section providing that the President of the United States should enforce the provisions of the bill by the use of the Army.
When you come to compare the provisions of that bill with the bill which has been reported from the Committee on the Judiciary at this session and which is now before the House, it will hardly be claimed that I should be entitled to the paternity of both. I have no special hostility against this peculiar people, the Mormons. But the fact is undeniable that these people are as directly hostile to the Government of the United States as was ever any portion of this country when it was in the very darkest hour of the rebellion. Why, sir, twelve years ago the Congress of the United States passed a bill providing that in all the Territories of the United States polygamy should be a crime, and that law stands unrepealed upon your statute-book today. Does the Delegate from that Territory who sits upon this floor pretend that that law has in any manner been obeyed? Does he not know that it has been openly and unblushingly disobeyed?
Mr. CANNON, of Utah. As the gentleman asks me a question.
Mr. POLAND. I desire to have the gentleman say "yes" or "no."
Mr. CANNON, of Utah. It is true that law has been on the statute- book since 1862; but it is a United States law. There have been United States judges, United States marshals, and a United States district attorney in the Territory of Utah ever since its passage. If the law has not been enforced, the people of Utah are not to blame for it.
Mr. POLAND. The gentleman does not answer my inquiry at all.
Everybody knows that that law has been unblushingly disobeyed, that the people there have never pretended to obey it and that they have openly and avowedly disobeyed it. And the gentleman says that nobody has been prosecuted. Why not? For the very want of such a bill as we propose now to pass. It was because their territorial laws were such that no man but a polygamist or one who believed in polygamy was ever allowed to enter the jury-box. Every United States officer in that Territory understood well that if he undertook under this law of Congress to try anybody for polygamy, he had to stand up before twelve unblushing, undeniable polygamists. That is the reason why the law of Congress has not been obeyed.
Mr. CANNON, of Utah. If there had been an attempt to enforce the law and the juries had found in favor of polygamy, then-the argument of the gentleman might have some force.
Mr. POLAND. I cannot be interrupted further in the short time I have left. The question now comes-before Congress, will we open the courts; will we provide the machinery by which our own laws can be enforced? Shall we longer suffer the disgrace of having upon our statute-books a law of Congress that has been there for twelve years, openly and avowedly disobeyed by those people? We must either repeal that law, or else we must provide some kind of legal machinery by which the lay can be enforced. And that is all this bill does.
Mr. ELDREDGE called for the yeas and nays.
The yeas and nays were ordered.
The question was taken; and there were-yeas 159, nays 55, and not voting 75; as follows…
Legislative Debate on the Poland Act in the Senate (June 23, 1874):
COURTS IN UTAH.
Mr. FRELINGHUYSEN. I now move that we proceed to the consideration of the Utah bill. I have this statement to make-
Mr. SPRAGUE. We have five minutes yet for the Calendar.
Mr. FRELINGHUYSEN. I have this statement to make-
The PRESIDENT pro tempore. The bill will come up in six minutes without any notice.
Mr. FRELINGHUYSEN. I have the floor now and I wish to make my statement. The bill as it will be presented to the Senate will be free from all objections by anyone who wants to have order and law in Utah, for I have prepared a series of amendments which will prune the bill of anything that could be objectionable to anyone who wants law there. The Attorney-General has written to us. He has told me this morning that yon cannot convict any person who is guilty of crime, and that the Territory is in a lawless condition. Now it seems to me that when we have that opinion from the Administration, when the House of Representatives has passed a bill, that it is our duty not to adjourn until we establish law there. - -
And now I want further to say, that if any member of the Senate thinks that the amendments which I will propose do not render the bill unobjectionable, I will accept any amendments in reference to polygamy and bigamy, so as just to have a bill which establishes law in that Territory as in every other, and with those modifications I think the bill can be passed in ten minutes.
Mr. SARGENT. I wish most earnestly with the Senator that there may be good order in the Territory. I think the proposition the Senator makes to eliminate from the bill anything relating to a disturbing course there, which he mentioned, may facilitate the passage of the hill. I am afraid, and have been for some years past, on account of the high condition of fanaticism of certain people in that Territory, that we might have a civil war there. I know they will go to the wall if that civil war comes. I know that their fertile fields will be plowed with the plowshare of war, and their homes will be devastated that the thrift, tile commendable thrift which now exists throughout the Territory will cease and there will be desolation, because they cannot contend against the Government of the United States; but I also know that they will stand up. I speak from considerable and a somewhat intimate knowledge of the persons arid conditions of things in Utah. I believe they will stand up and involve these consequences.
I further think that the progress of time, the influx of gentiles is wearing away that prejudice, religious or otherwise, on the part of the people of Utah, and is gradually solving this question. I think they are in the condition of an iceberg that has broken from its fastening's in the north and I floated down into warmer seas, dissolving on all sides, and that soon this question will disappear from public view unless; you aggravate it by aggressive measures, unless you bring force to bear against them and compel them to resist, and we all know religions wars never succeed or very rarely succeed in putting down the sect against whom they are waged. I think it is better to leave that question to time, as I say; and if these provisions can be eliminated from the bill, and an amendment which I wish to propose saving the jurisdiction of probate courts, which are the county court of Utah to pass upon the matters relative to town sites as is provided by the United States laws in regard to town sites, I will make-no opposition to the bill, certainly no factious opposition; I will not attempt to talk against time or embarrass the Senate in any way. With that understanding I have no objection to the bill coming up and being considered.
Mr. LOGAN. It, seems to, be almost impossible to have any legist ion in reference to questions involving certain matters connected with the Territory of Utah. Time and again the attempt has been made. I do not say, nor will I, that it is a disgrace to Congress that they will not act upon a :proposition of this kind, but if there is anything approaching a disgrace attaching to the Congress of the United States now in existence it is the fact that in one end of the Capitol a polygamist sits, and no man has the nerve to turn him out of the Congress or the United States. If there is another approaching disgrace, it is that Congress has not the manhood and the boldness to stand up and strike at this shame and disgrace to the institutions of this country.
The PRESIDENT pro tempore. The Chair thinks it is not in order to make such references to the other House.
Mr. LOGAN. Then I withdraw what I said in reference to the House, but I do not in reference to the polygamist. I appeal to Senators on this floor, I know many of us have been reminded during this, session that the republican platform had something to do with legislation; I do not think platforms have anything to do with legislation; but inasmuch as I have been reminded of it, let me remind Senators here that time and again you have announced to the world that this "twin relic of barbarism" should be extirpated from this country; and yet in the last session of Congress, and now, when this bill is brought forward to give power to the courts to administer justice in that Territory the same as it is elsewhere, in conformity with the law, we find men ready in every possible way to thwart legislation for the purpose of allowing the courts to administer justice in that Territory.
Why is it? Has polygamy stretched out its arm until it fastens its power on every man in this Chamber? Is it true that the head of the Mormon Church has more power in Congress than the morals of the whole country? Is it true that the head of that theocracy, after boasting that he could control Congress is able to say to the country that Congress is afraid to deal with him?
Sir, these are facts. , The country will ask us why it is that we are afraid to deal with polygamy; why we are afraid to give the courts the power to deal with it; why we are afraid to legislate in the direction of Mormonism; why we are afraid of the power of the head of the church of Mormonism, this polygamic church. Sir, if the Congress of the United States is afraid to deal with such barbarism as this, it is not fit to represent the Republic that we do represent.
Mr. TIPTON: Mr. President, I don not understand that it is any evidence of cowardice on the part of republican members of the Senate that they have not acted affirmatively on this question of Utah and her institutions. If that is to be taken as evidence of cowardice, then I say that there is equal evidence of cowardice on another question, not so far as the Senate is concerned; but we are told that the honorable Senator, then, how does it come that the platform of the party also requires something on the question of civil rights, and yet the bill that was passed by the senate has not yet become a law, as I understand, while there is power enough in the Congress of the United States belonging to that party to make it a law?
Mr. LOGAN. Will the Senator allow me a word tight there?
Mr. TIPTON. Yes, Sir.
Mr. LOGAN. In reference to the platform, I said that I asked no legislation on account of any platform, but that it was thrown in the teeth of certain Senators here that platforms said certain things, and I only retorted on that by reference to legislation on this subject.
Mr. TIPTON. I undoubtedly labored under a misapprehension; and as time is so important I accept the apology of the Senator from Illinois and will not continue my remarks.
Mr. FRELINGHUYSEN. I move that the Senate proceed to the consideration of the Utah bill.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill (H. R. No. 3097) in relation to courts and judicial officers in the Territory of Utah.
The Committee on the Judiciary proposed to amend the bill by striking our section 7, in the following words:
Sec.7. That the common-law of England, as the same is defined and modified by the courts of last resort in those States of the United States where the common law prevails, shall be the rule of decision in all the courts of said Territory so far as it is not pregnant to or inconsistent with the Constitution and laws of the United States and the existing statutes of said Territory.
The amendment was agreed to.
Mr. FRELINGHUYSEN. I offer an amendment to come on page 6, in the sixty-third line, after the word “appeals”.
Mr. BAYARD. Is the seventh section stricken out? That seems to me a most innocent-looking section.
Mr. FRELINGHUYSEN. I would say to the Senator from Delaware that the seventh section was stricken out at the instance of those who thought it might confer some criminal jurisdiction which was objectionable.
The PRESIDING OFFICER. (Mr. EDMUNDS in the chair.) The amendment of the Senator from New Jersey will be reported.
The Chief Clerk. On page 6, in line 63, after the word “appeals”, it is proposed to insert:
A writ of error from the Supreme Court of the United States to the supreme court of the Territory shall lie in criminal cases where the accused shall lie in criminal cases where the accused shall have been sentenced to capital punishment or convicted of bigamy or polygamy.
The amendment was agreed to.
Mr. FRELINGHUYSEN. There were a number of amendments which I proposed to make to this bill that do not go as far as some amendments which those who have been opposed to the bill propose to make, and therefore I will hear what amendments they desire to make.
Mr. SARGENT. On page 4, section 3, line 12, I move to strike out all after the word “divorce” down to and including the whole of line 28, on page 8.
The Chief Clerk read the words to be stricken out, as follows:
When a bill is filed by a woman to declare a marriage or pretended marriage void, on account of a previous subsisting marriage of the defendant to another woman, the court or judge thereof may grant such reasonable sum for alimony and counsel fees as the circumstances of the case will justify; and may likewise, her children by the defendant as may be just and reasonable. And whenever, in any proceeding for divorce, or in any civil cause, or in any criminal prosecution, it is necessary to prove the existence of the marriage relation between two persons, it shall not be necessary to prove the same by the production of any record or certificate of the marriage, but evidence of cohabitation between the parties as husband and wife, and the acts, conduct, declarations, and admissions of the parties shall be admissible, and the marriage may be established like any question of fact.
Mr. FRELINGHUYSEN. I intended to modify that part of the bill by making it apply only to the future; but under the view which is taken by those who are opposed to the bill, I submit it to the judgment of the Senate without making any opposition.
The amendment was agreed to.
Mr. SARGENT. On page 8 after the word "challenges," in line 53, of section 4, I move to strike out all down to and including the word "same" in line 57. The words to be stricken out are:
And in the trial of any prosecution for adultery, bigamy, or polygamy, it shall be a good cause of principal challenge to any juror that he practices polygamy, or that he believes in the rightfulness of the same.
This amendment being adopted makes this bill as it was intended by the Senator from New Jersey this morning under all the circumstances of the case, so that it shall give efficiency to the courts there, untangle them in their civil and criminal proceedings, and leave the question of polygamy untouched for future consideration.
MR. FRELINGHUYSEN. It had been my purpose to restrict that provision to future crimes. It is insisted, however, by those who are opposed to the bill that it must be taken out of the bill entirely, and rather than that the bill should fail and that there should be no law in Utah, I do not oppose the amendment.
The amendment was agreed to.
Mr. SARGENT. I have one other amendment, and it is the last. I am obliged to the Senator for his courtesy. On page 8, after the word "challenges," in line 53, I wish to insert “except in Capital cases, where the prosecution shall be allowed five and the defense fifteen challenges."
When a man is being tried for his life, three challenges are rather limited. I think there is no State in the Union that does not give at least fifteen, and some are even more liberal than that. I propose that the prosecution shall have five and the defense fifteen.
Mr. FRELINGHUYSEN. I move to amend that amendment so that the prosecution and defense each shall have fifteen, if that is the number. They ought to have the same.
Mr. SARGENT. That never is so under the law I ever heard of.
Mr. FRELINGHUYSEN. 0h, yes.
Mr. SARGENT. I do not know that there is any especial objection to the prosecution having fifteen. The main point is that the defense shall have fifteen. I will assent to that modification, so that it shall be fifteen.
The PRESIDING OFFICER. The amendment of the Senator from California will be modified so as to read "except in capital cases, where the prosecution and defense shall each be allowed fifteen challenges."
The amendment was agreed to.
Mr. INGALLS. I offer the following as an additional section to the bill:
That in all cases in which any person was deprived of his or her property in the Territory of Utah prior to the year 1860 by the action of the Mormons, or who before that time was forced to leave the Territory in consequence of the hostility of the Mormons, and whose property was taken, used, disposed of, or appropriated by the said Mormons, or who suffered any deprivation of property or personal wrong at the hands of said Mormons, he or she, or his or her heirs or legal representatives shall have the right the individual Mormons, or against those who then had control of the Territory; or they may sue for and recover the identical property , real, personal, or mixed, of which the original party was deprived as aforesaid, the same in all respects as if the suit had been brought at the time the wrongs were committed: Provided, That such suits shall be brought in the proper courts within three years from this date.
It is well known, Mr. President that in the disturbances in this Territory prior to the year 1860 a large number of people were expelled and their property confiscated and otherwise disposed of. Since that time there have been no courts to which parties could resort for the enforcement of their rights or the redress of their wrongs, and by lapse of time now that the courts are established they will be barred. The intention of this section is simply to remove the bar of the statute of limitations which has been enforced by the act of the Mormons themselves and to allow parties to sue in the courts for the recovery of their property or for the redress of their wrongs.
Mr. SARGENT. Will the Senator state what the statute of limitations in the Territory of Utah is?
Mr. INGALLS. I do not know what it is.
Mr. SARGENT. I think I am very reliably informed that there is no statute of limitations at all in the Territory of Utah. In that case the amendment is entirely unnecessary. It raises a great many questions that I think would be necessary to be considered by the Senate. The amendment cannot pass without discussion. It embraces too many propositions of a novel character. There is no necessity for it, for the reason I have mentioned. I do not think any Senator can controvert the proposition which I make, that there is no statute of limitations, and has not been, in the Territory of Utah. That would dispose of any necessity for the amendment, and would answer the reason which is given by the Senator himself. The proposition itself, however, is of very doubtful character. It may be a question whether under it old hatreds will not be stirred up, whether on false pretensions persons may not be persecuted who are entirely innocent, and whether persons who are not at all responsible for the actions complained of may be held liable for them. If I understood the reading of the amendment it provides that anybody who had control in Utah in the ordinary sense, who held any office of power there, should be responsible for the acts of anyone, no matter who, that was lawless in any part of the Territory extending for years back ..
Certainly provisions of this kind ought not to be incorporated in this bill. If there was any necessity for anything of the kind, if anybody complained that the courts of Utah which are opened by the bill have not been open all the time so that he could begin a suit, or that he is prevented from so doing by any statute of limitations, then we might give it a respectful hearing; but it will take too much time to Justify us in adopting this amendment in the loose manner in which it is drawn.
Mr. INGALLS. It is a matter of public notoriety that the courts in Utah have been closed during the period to which the amendment refers, and the bill that is now under consideration is for the express purpose of providing courts in Utah by which these questions may be tried. So far as the questions involved in the amendment are concerned, I would state to the Senator from California that they are neither numerous nor novel. It is simply and purely a. question whether the bar of the statute of limitations shall be removed as against the persons by whom these crimes were committed; and the difficulty has been that the courts having been closed there has been no forum, no tribunal to which those parties could apply for redress. It appears to me that the amendment is so humane, it is so just, it is so in accordance with all the principles 'of law that them ought to be no discussion whatever in the Senate upon it. It should be adopted without controversy.
Mr. THURMAN. I must confess my surprise that such an amendment as this is pressed on this bill, and I should be more surprised were it not that I have a very firm conviction that one of the great objects of this bill, if not the greatest object of it, is to stir up litigation whereby certain gentlemen of the profession ill Utah may make money. I believe that but for that special interest of stirring up litigation in that Territory, we should .hear nothing of this bill.
We hear a great deal about a failure of the courts there and of a want of courts. If there is want of courts there, it is the want of the officials. There is law enough for courts now; but it seems that some gentlemen must have an act passed that shall give rise to litigation in Utah; and here is a proposition to go back to 1830, to go back fourteen years; to stir up suits for assaults and batteries, for trespass, and the like, suits that in every State of this Union that has a civil node are banned in one or two years to go back and take them up and revive the causes of action against not simply the wrong-doers, but to create a cause of action against those who were in the government of the Territory whether they were the wrongdoers or not; to revive actions absolutely banned. Where does the Senator get his authority to do that, I should like to know?
Mr. INGALLS. The Senator, certainly, as a lawyer, must be familiar with the fact that if the Mormons themselves have kept the courts closed and refused parties the forum in which these matters can be tried when we now attempt to institute courts and provide for the administration of justice, these claims ought certainly to be sometimes tried and heard.
Mr. THURMAN. It will not do to say that the Mormons have refused a forum. Ever since 1856 there have been courts of the United States in that Territory, I believe before 1856; courts maintained by the power of the General Government and competent to afford redress to anybody who was wronged in that Territory. This proposition therefore is, as I said before, to revive causes of action that are absolutely barred; and I once more demand of the Senator to know where he finds authority to do such a thing as that? He has no more right to revive a cause of action where the bar has become complete; than there is to legislate that his house shall become my property. You may before the bar becomes complete, in a case of the statute of limitations, extend that act; but after the bar of the statute becomes complete the Legislature has no power to revive that cause of action.
Mr. INGALLS. Does not the Senator admit the fact that the statute of limitations never runs against fraud?
Mr. THURMAN. I do not admit any such thing.
Mr. INGALLS. It has been established by the Supreme Court of the United States repeatedly.
Mr. THURMAN. I do not admit any such thing as that the statute of limitations does not run against fraud. It runs against many cases where there is fraud, actions of deceit, actions for obtaining money by false pretenses, and a vast variety of cases.
But, sir, that is not the question. The Senators amendment goes to everything; it goes to the question of an action of ejectment nor real estate forsooth when it is as well-settled law in this country as anything can be settled that where the bar of the statute of limitations is complete in respect to real estate, it operates to divest the title of him who has been out of possession and to vest title in him who has had the possession required by the statute. You propose to take a man's property, which is his as much as if he held it by patent from the United States, and to take it by an act of Congress! Surely sir, it cannot be necessary to back against such a proposition as this amendment unless we are prepared to stir up the very worst state of things that can exist in any country-a universal litigation from one end of it to the other, and that with a feeling on the part of nine-tenths of the people of that Territory that this litigation is part of a persecution they are to endure, and endure perhaps even to the death.
Mr. FRELINGHUYSEN. Mr. President, I shall vote against this amendment. There are a great many amendments which have been made to this bill which I have agreed to, not because I thought they ought to be made, but because by reason of the situation of the bill I do not think it is wise when we are within two hours of the end of the session to introduce on this bill new matter which has nothing to do with the great object we have in establishing law in that Territory; and therefore I shall vote against the amendment.
The PRESIDENT pro tempore. The question is on the amendment of the Senator from Kansas.
The amendment was rejected.
The bill was reported to the Senate as amended, and the amendments made as in Committee of the whole were concurred in.
The amendments were ordered to be engrossed and the bill to be read a third time.
The bill was read the third time.
Mr. SPRAGUE. I ask for the yeas and nays on the passage of the bill.
The yeas and nays were not ordered.
The bill was passed