1. Sect. 808 of the Revised Statutes, providing for impaneling
grand juries and prescribing the number of which they shall
consist, applies only to the Circuit and the District Courts of the
United States. An indictment for bigamy under sect. 5352 may,
therefore, be found in a district court of Utah, by a grand jury of
fifteen persons, impaneled pursuant to the laws of that
Territory.
2. A petit juror in a criminal case testified on his
voire
dire that he believed that he had formed an opinion, although
not upon evidence produced in court, as to the guilt or innocence
of the prisoner, but that he had not expressed it, and did not
think that it would influence his verdict. He was thereupon
challenged by the prisoner for cause. The court overruled the
challenge.
Held, that its action was not erroneous.
3. Where it is apparent from the record that the challenge of a
petit juror, if it had been made by the United States for favor,
should have been sustained, the judgment against the prisoner will
not be reversed simply because the challenge was in form for
cause.
4. Although the Constitution declares that, in all criminal
prosecutions, the accused shall enjoy the right to be confronted
with the witnesses against him, yet, if they are absent by his
procurement, or when enough has been proved to cast upon him the
burden of showing, and he, having full opportunity therefor, fails
to show that he has not been instrumental in concealing them or in
keeping them away, he is in no condition to assert that his
constitutional right has been violated by allowing competent
evidence of the testimony which they gave on a previous trial
between the United States and him upon the same issue. Such
evidence is admissible.
5. Said sect. 5352 is in all respects constitutional and
valid.
6. The scope and meaning of the first article of the amendments
to the Constitution discussed.
7. A party's religious belief cannot be accepted as a
justification for his committing an overt act, made criminal by the
law of the land. Where, therefore, the prisoner, knowing that his
wife was living, married again in Utah, and, when indicted and
tried therefor, set up that the church whereto he belonged enjoined
upon its male members to practise polygamy, and that he, with the
sanction of the recognized authorities of the church, and by a
ceremony performed pursuant to its doctrines, did marry again --
held, that the court properly refused to charge the jury
that he was entitled to an acquittal although they should find that
he had contracted such second marriage pursuant to, and in
conformity with, what he believed at the time to be a religious
duty.
8. The court told the jury to
"consider what are to be the consequences to the innocent
victims of this delusion [the doctrine of polygamy]. As this
contest goes on, they multiply, and there are pure-minded women and
there are innocent children -- innocent in a sense even beyond the
degree of the innocence of childhood itself. These are to be the
sufferers; and as jurors fail to do their duty, and as these cases
come up in the Territory of Utah, just so do these victims multiply
and spread themselves over the land."
Held, that the charge was not improper.
Page 98 U. S. 146
This is an indictment found in the District Court for the third
judicial district of the Territory of Utah, charging George
Reynolds with bigamy, in violation of sect. 5352 of the Revised
Statutes, which, omitting its exceptions, is as follows:
"Every person having a husband or wife living, who marries
another, whether married or single, in a Territory, or other place
over which the United States have exclusive jurisdiction, is guilty
of bigamy, and shall be punished by a fine of not more than $500,
and by imprisonment for a term of not more than five years."
The prisoner pleaded in abatement that the indictment was not
found by a legal grand jury, because fifteen persons, and no more,
were impaneled and sworn to serve as a grand jury at the term of
the court during which the indictment was found, whereas sect. 808
of the Revised Statutes of the United States enacts that every
grand jury impaneled before any District or Circuit Court shall
consist of not less than sixteen persons.
An act of the legislature of Utah of Feb. 18, 1870, provides
that the court shall impanel fifteen men to serve as a grand jury.
Compiled Laws of Utah, ed. of 1876, p. 357, sect. 4.
The court overruled the plea, on the ground that the territorial
enactment governed.
The prisoner then pleaded not guilty. Several jurors were
examined on their
voire dire by the district attorney.
Among them was Eli Ransohoff, who, in answer to the question, "Have
you formed or expressed an opinion as to the guilt or innocence of
the prisoner at the bar?" said, "I have expressed an opinion by
reading the papers with the reports of the trial."
Q. "Would that opinion influence your verdict in hearing the
evidence?"
A. "I don't think it would."
By the defendant: "You stated that you had formed some opinion
by reading the reports of the previous trial?"
"Yes."
Q. "Is that an impression which still remains upon your
mind?"
Page 98 U. S. 147
A. "No; I don't think it does; I only glanced over it, as
everybody else does."
Q. "Do you think you could try the case wholly uninfluenced by
anything?"
A. "Yes."
Charles Read, called as a juror, was asked by the district
attorney, "Have you formed or expressed any opinion as to the guilt
or innocence of this charge?"
A. "I believe I have formed an opinion."
By the court: "Have you formed and expressed an opinion?"
A. "No, sir; I believe not."
Q. "You say you have formed an opinion?"
A. "I have."
Q. "Is that based upon evidence?"
A. "Nothing produced in court."
Q. "Would that opinion influence your verdict?"
A. "I don't think it would."
By defendant: "I understood you to say that you had formed an
opinion, but not expressed it."
A. "I don't know that I have expressed an opinion; I have formed
one."
Q. "Do you now entertain that opinion?"
A. "I do."
The defendant challenged each of these jurors for cause. The
court overruled the challenge, and permitted them to be sworn. The
defendant excepted.
The court also, when Homer Brown was called as a juror, allowed
the district attorney to ask him the following questions: Q. "Are
you living in polygamy?" A. "I would rather not answer that." The
court instructed the witness that he must answer the question,
unless it would criminate him. By the district attorney: "You
understand the conditions upon which you refuse?" A. "Yes, sir." Q.
"Have you such an opinion that you could not find a verdict for the
commission of that crime?" A. "I have no opinion on it in this
particular case. I think, under the evidence and the law, I could
render a verdict accordingly." Whereupon the United States
challenged the said Brown for favor, which challenge was sustained
by the court, and the defendant excepted.
Page 98 U. S. 148
John W. Snell, also a juror, was asked by the district attorney
on
voire dire: Q. "Are you living in polygamy?" A. "I
decline to answer that question." Q. "On what ground?" A. "It might
criminate myself; but I am only a fornicator." Whereupon Snell was
challenged by the United States for cause, which challenge was
sustained, and the defendant excepted.
After the trial commenced, the district attorney, after proving
that the defendant had been married on a certain day to Mary Ann
Tuddenham, offered to prove his subsequent marriage to one Amelia
Jane Schofield during the lifetime of said Mary. He thereupon
called one Pratt, the deputy marshal, and showed him a subpoena for
witnesses in this case, and among other names thereon was the name
of Mary Jane Schobold, but no such name as Amelia Jane Schofield.
He testified that this subpoena was placed in his hands to be
served.
Q. "Did you see Mr. Reynolds when you went to see Miss
Schofield?"
A. "Yes, sir."
Q. "Who did you inquire for?"
A. "I inquired for Mary Jane Schofield, to the best of my
knowledge. I will state this, that I inserted the name in the
subpoena, and intended it for the name of the woman examined in
this case at the former term of the court, and inquired for Mary
Jane Schofield, or Mrs. Reynolds, I do not recollect certainly
which."
Q. "State the reply."
A. "He said she was not at home."
Q. "Did he say anything further."
A. "I asked him then where I could find her. I said, "Where is
she? And he said, "You will have to find out."
Q. "Did he know you to be a deputy marshal?"
A. "Yes, sir."
Q. "Did you tell him what your business was as deputy
marshal?"
A. "I don't remember now; I don't think I did."
Q. "What else did he say?"
Page 98 U. S. 149
A. "He said, just as I was leaving, as I understood it, that she
did not appear in this case."
The court then ordered a subpoena to issue for Amelia Jane
Schofield, returnable instanter.
Upon the following day, at ten o'clock A.M., the said subpoena
for the said witness having issued about nine o'clock P.M. of the
day before, the said Arthur Pratt was again called upon, and
testified as follows:
Q. (By district attorney.) "State whether you are the officer
that had subpoena in your hands." (Exhibiting subpoena last issued,
as above set forth.)
A. "Yes, sir."
Q. "State to the court what efforts you have made to serve
it."
A. "I went to the residence of Mr. Reynolds, and a lady was
there, his first wife, and she told me that this woman was not
there; that that was the only home that she had, but that she
hadn't been there for two or three weeks. I went again this
morning, and she was not there."
Q. "Do you know anything about her home -- where she
resides?"
A. "I know where I found her before."
Q. "Where?"
A. "At the same place."
Q. "You are the deputy marshal that executed the process of the
court?"
A. "Yes, sir."
Q. "Repeat what Mr. Reynolds said to you when you went with the
former subpoena introduced last evening."
A. "I will state that I put her name on the subpoena myself. I
know the party, and am well acquainted with her, and I intended it
for the same party that I subpoenaed before in this case. He said
that she was not in, and that I could get a search warrant if I
wanted to search the house. I said, "Will you tell me where she
is?" He said, "No; that will be for you to find out." He said, just
as I was leaving the house -- I don't remember exactly what it was,
but my best recollection is that he said she would not appear in
this case."
Page 98 U. S. 150
Q. "Can't you state that more particularly?"
A. "I can't give you the exact words, but I can say that was the
purport of them."
Q. "Give the words as nearly as you can."
A. "Just as I said, I think those were his words."
The district attorney then offered to prove what Amelia Jane
Schofield had testified to on a trial of another indictment
charging the prisoner with bigamy in marrying her, to which the
prisoner objected on the ground that a sufficient foundation had
not been laid for the introduction of the evidence.
A. S. Patterson, having been sworn, read, and other witnesses
stated, said Amelia's testimony on the former trial tending to show
her marriage with the defendant. The defendant excepted to the
admission of the evidence.
The court, in summing up to the jury, declined to instruct them,
as requested by the prisoner, that if they found that he had
married in pursuance of and conformity with what he believed at the
time to be a religious duty, their verdict should be "not guilty,"
but instructed them that if he, under the influence of a religious
belief that it was right, had
"deliberately married a second time, having a first wife living,
the want of consciousness of evil intent -- the want of
understanding on his part that he was committing crime -- did not
excuse him, but the law inexorably, in such cases, implies criminal
intent."
The court also said:
"I think it not improper, in the discharge of your duties in
this case, that you should consider what are to be the consequences
to the innocent victims of this delusion. As this contest goes on,
they multiply, and there are pure-minded women and there are
innocent children -- innocent in a sense even beyond the degree of
the innocence of childhood itself. These are to be the sufferers;
and as jurors fail to do their duty, and as these cases come up in
the Territory, just so do these victims multiply and spread
themselves over the land."
To the refusal of the court to charge as requested, and to the
charge as given, the prisoner excepted. The jury found him guilty,
as charged in the indictment, and the judgment that he be
imprisoned at hard labor for a term of two years, and pay
Page 98 U. S. 151
a fine of $500, rendered by the District Court, having been
affirmed by the Supreme Court of the Territory, he sued out this
writ of error.
The assignments of error are set out in the opinion of the
court.
Page 98 U. S. 153
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The assignments of error, when grouped, present the following
questions:
1. Was the indictment bad because found by a grand jury of less
than sixteen persons?
2. Were the challenges of certain petit jurors by the accused
improperly overruled?
3. Were the challenges of certain other jurors by the government
improperly sustained?
4. Was the testimony of Amelia Jane Schofield, given at a former
trial for the same offence, but under another indictment,
improperly admitted in evidence?
5. Should the accused have been acquitted if he married the
second time, because he believed it to be his religious duty?
6. Did the court err in that part of the charge which directed
the attention of the jury to the consequences of polygamy?
These questions will be considered in their order.
1. As to the grand jury.
The indictment was found in the District Court of the third
judicial district of the Territory. The act of Congress "in
relation to courts and judicial officers in the Territory of Utah,"
approved June 23, 1874 (18 Stat. 253), while regulating the
qualifications of jurors in the Territory and prescribing the mode
of preparing the lists from which grand and petit jurors are to be
drawn, as well as the manner of drawing, makes no provision in
respect to the number of persons of which a grand jury shall
consist. Sect. 808, Revised Statutes, requires that a grand jury
impaneled before any district or circuit court of the United States
shall consist of not less than sixteen nor more than twenty-three
persons, while a statute of the Territory limits the number in the
district courts of the Territory
Page 98 U. S. 154
to fifteen. Comp.Laws Utah, 1876, 357. The grand jury which
found this indictment consisted of only fifteen persons, and the
question to be determined is whether the section of the Revised
Statutes referred to or the statute of the Territory governs the
case.
By sect. 1910 of the Revised Statutes, the district courts of
the Territory have the same jurisdiction in all cases arising under
the Constitution and laws of the United States as is vested in the
circuit and district courts of the United States; but this does not
make them circuit and district courts of the United States. We have
often so decided.
American Insurance Co. v.
Canter, 1 Pet. 511;
Benner et
al. v. Porter, 9 How. 235;
Clinton v.
Englebrecht, 13 Wall. 434. They are courts of the
Territories, invested for some purposes with the powers of the
courts of the United States. Writs of error and appeals lie from
them to the Supreme Court of the Territory, and from that court as
a territorial court to this in some cases.
Sect. 808 was not designed to regulate the impaneling of grand
juries in all courts where offenders against the laws of the United
States could be tried, but only in the circuit and district courts.
This leaves the territorial courts free to act in obedience to the
requirements of the territorial laws in force for the time being.
Clinton v. Englebrecht, supra; 85 U. S.
Toombs, 18 Wall. 648. As Congress may at any time assume
control of the matter, there is but little danger to be anticipated
from improvident territorial legislation in this particular. We are
therefore of the opinion that the court below no more erred in
sustaining this indictment than it did at a former term, at the
instance of this same plaintiff in error, in adjudging another bad
which was found against him for the same offence by a grand jury
composed of twenty-three persons. 1 Utah 226.
2. As to the challenges by the accused.
By the Constitution of the United States (Amend. VI.), the
accused was entitled to a trial by an impartial jury. A juror to be
impartial must, to use the language of Lord Coke, "be indifferent
as he stands unsworn." Co. Litt. 155
b. Lord Coke also says
that a principal cause of challenge is
"so called because, if it be found true, it standeth sufficient
of itself, without
Page 98 U. S. 155
leaving anything to the conscience or discretion of the
triers"
(
id., 156
b); or, as stated in Bacon's
Abridgment, "it is grounded on such a manifest presumption of
partiality that, if found to be true, it unquestionably sets aside
the . . . juror." Bac.Abr., tit. Juries, E.1.
"If the truth of the matter alleged is admitted, the law
pronounces the judgment; but if denied, it must be made out by
proof to the satisfaction of the court or the triers."
Id., E.12. To make out the existence of the fact, the
juror who is challenged may be examined on his
voire dire,
and asked any questions that do not tend to his infamy or
disgrace.
All of the challenges by the accused were for principal cause.
It is good ground for such a challenge that a juror has formed an
opinion as to the issue to be tried. The courts are not agreed as
to the knowledge upon which the opinion must rest in order to
render the juror incompetent, or whether the opinion must be
accompanied by malice or ill will; but all unite in holding that it
must be founded on some evidence, and be more than a mere
impression. Some say it must be positive (Gabbet, Criminal Law,
391); others, that it must be decided and substantial (Armistead's
Case, 11 Leigh (Va.) 659;
Wormley's Case, 10 Gratt. (Va.)
658;
Neely v. The People, 13 Ill. 685); others, fixed
(
State v. Benton, 2 Dev. & B. (N.C.) L. 196); and
still others deliberate and settled (
Staup v.
Commonwealth, 74 Pa.St. 458;
Curley v. Commonwealth,
84
id. 151). All concede, however, that, if hypothetical
only, the partiality is not so manifest as to necessarily set the
juror aside. Mr. Chief Justice Marshall, in Burr's Trial (1 Burr's
Trial 416), states the rule to be that
"light impressions, which may fairly be presumed to yield to the
testimony that may be offered, which may leave the mind open to a
fair consideration of the testimony, constitute no sufficient
objection to a juror, but that those strong and deep impressions
which close the mind against the testimony that may be offered in
opposition to them, which will combat that testimony and resist its
force, do constitute a sufficient objection to him."
The theory of the law is that a juror who has formed an opinion
cannot be impartial. Every opinion which he may entertain need not
necessarily have that effect. In these days of newspaper enterprise
and universal education, every case of public interest is almost,
as a matter of necessity,
Page 98 U. S. 156
brought to the attention of all the intelligent people in the
vicinity, and scarcely anyone can be found among those best fitted
for jurors who has not read or heard of it, and who has not some
impression or some opinion in respect to its merits. It is clear,
therefore, that upon the trial of the issue of fact raised by a
challenge for such cause, the court will practically be called upon
to determine whether the nature and strength of the opinion formed
are such as in law necessarily to raise the presumption of
partiality. The question thus presented is one of mixed law and
fact, and to be tried, as far as the facts are concerned, like any
other issue of that character, upon the evidence. The finding of
the trial court upon that issue ought not to be set aside by a
reviewing court, unless the error is manifest. No less stringent
rules should be applied by the reviewing court in such a case than
those which govern in the consideration of motions for new trial
because the verdict is against the evidence. It must be made
clearly to appear that upon the evidence the court ought to have
found the juror had formed such an opinion that he could not, in
law, be deemed impartial. The case must be one in which it is
manifest the law left nothing to the "conscience or discretion" of
the court.
The challenge in this case most relied upon in the argument here
is that of Charles Read. He was sworn on his
voire dire,
and his evidence,{1} taken as a whole, shows that he "believed" he
had formed an opinion which he had never expressed, but which he
did not think would influence his verdict on hearing the testimony.
We cannot think this is such a manifestation of partiality as to
leave nothing to the "conscience or discretion" of the triers. The
reading of the evidence leaves the impression that the juror had
some hypothetical opinion about the case, but it falls far short of
raising a manifest presumption of partiality. In considering such
questions in a reviewing court, we ought not to be unmindful of the
fact we have so often observed in our experience, that jurors not
unfrequently seek to excuse themselves on the ground of having
formed an opinion, when, on examination, it turns out that no real
disqualification exists. In such cases, the manner of the
Page 98 U. S. 157
juror while testifying is oftentimes more indicative of the real
character of his opinion than his words. That is seen below, but
cannot always be spread upon the record. Care should, therefore, be
taken in the reviewing court not to reverse the ruling below upon
such a question of fact, except in a clear case. The affirmative of
the issue is upon the challenger. Unless he shows the actual
existence of such an opinion in the mind of the juror as will raise
the presumption of partiality, the juror need not necessarily be
set aside, and it will not be error in the court to refuse to do
so. Such a case, in our opinion, was not made out upon the
challenge of Read. The fact that he had not expressed his opinion
is important only as tending to show that he had not formed one
which disqualified him. If a positive and decided opinion had been
formed, he would have been incompetent even though it had not been
expressed. Under these circumstances, it is unnecessary to consider
the case of Ransohoff, for it was confessedly not as strong as that
of Read.
3. As to the challenges by the government.
The questions raised upon these assignments of error are not
whether the district attorney should have been permitted to
interrogate the jurors while under examination upon their
voire
dire as to the fact of their living in polygamy. No objection
was made below to the questions, but only to the ruling of the
court upon the challenges after the testimony taken in answer to
the questions was in. From the testimony, it is apparent that all
the jurors to whom the challenges related were or had been living
in polygamy. It needs no argument to show that such a jury could
not have gone into the box entirely free from bias and prejudice,
and that, if the challenge was not good for principal cause, it was
for favor. A judgment will not be reversed simply because a
challenge good for favor was sustained in form for cause. As the
jurors were incompetent and properly excluded, it matters not here
upon what form of challenge they were set aside. In one case, the
challenge was for favor. In the courts of the United States, all
challenges are tried by the court without the aid of triers
(Rev.Stat. sect. 819), and we are not advised that the practice in
the territorial courts of Utah is different.
Page 98 U. S. 158
4. As to the admission of evidence to prove what was sworn to by
Amelia Jane Schofield on a former trial of the accused for the same
offence but under a different indictment.
The Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him; but if a
witness is absent by his own wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place of
that which he has kept away. The Constitution does not guarantee an
accused person against the legitimate consequences of his own
wrongful acts. It grants him the privilege of being confronted with
the witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If, therefore,
when absent by his procurement, their evidence is supplied in some
lawful way, he is in no condition to assert that his constitutional
rights have been violated.
In
Lord Morley's Case (6 State Trials, 770), as long
ago as the year 1666, it was resolved in the House of Lords
"that, in case oath should be made that any witness, who had
been examined by the coroner and was then absent, was detained by
the means or procurement of the prisoner, and the opinion of the
judges asked whether such examination might be read, we should
answer, that, if their lordships were satisfied by the evidence
they had heard that the witness was detained by means or
procurement of the prisoner, then the examination might be read;
but whether he was detained by means or procurement of the prisoner
was matter of fact, of which we were not the judges, but their
lordships."
This resolution was followed in
Harrison's Case (12
id. 851), and seems to have been recognized as the law in
England ever since. In
Regina v. Scaife (17 Ad. &
El.N.S. 242), all the judges agreed that, if the prisoner had
resorted to a contrivance to keep a witness out of the way, the
deposition of the witness, taken before a magistrate and in the
presence of the prisoner, might be read. Other cases to the same
effect are to be found, and in this country the ruling has been in
the same way.
Drayton v. Wells, 1 Nott & M. (S.C.)
409;
Williams v. The State, 19 Ga. 403. So that now, in
the leading textbooks, it is laid down that, if a witness is kept
away by the adverse party,
Page 98 U. S. 159
his testimony, taken on a former trial between the same parties
upon the same issues, may be given in evidence. 1 Greenl.Evid.,
sect. 163; 1 Taylor, Evid., sect. 446. Mr. Wharton (1 Whart.Evid.,
sect. 178) seemingly limits the rule somewhat, and confines it to
cases where the witness has been corruptly kept away by the party
against whom he is to be called, but in reality his statement is
the same as that of the others; for in all it is implied that the
witness must have been wrongfully kept away. The rule has its
foundation in the maxim that no one shall be permitted to take
advantage of his own wrong, and, consequently, if there has not
been, in legal contemplation, a wrong committed, the way has not
been opened for the introduction of the testimony. We are content
with this long-established usage, which, so far as we have been
able to discover, has rarely been departed from. It is the
outgrowth of a maxim based on the principles of common honesty,
and, if properly administered, can harm no one.
Such being the rule, the question becomes practically one of
fact, to be settled as a preliminary to the admission of secondary
evidence. In this respect, it is like the preliminary question of
the proof of loss of a written instrument, before secondary
evidence of the contents of the instrument can be admitted. In
Lord Morley's Case (
supra), it would seem to have
been considered a question for the trial court alone, and not
subject to review on error or appeal; but without deeming it
necessary in this case to go so far as that, we have no hesitation
in saying that the finding of the court below is, at least, to have
the effect of a verdict of a jury upon a question of fact, and
should not be disturbed unless the error is manifest.
The testimony shows that the absent witness was the alleged
second wife of the accused; that she had testified on a former
trial for the same offence under another indictment; that she had
no home, except with the accused; that, at some time before the
trial, a subpoena had been issued for her, but, by mistake, she was
named as Mary Jane Schobold; that an officer who knew the witness
personally went to the house of the accused to serve the subpoena,
and on his arrival inquired for her, either by the name of Mary
Jane Schofield or Mrs. Reynolds; that he was told by the accused
she was not at home;
Page 98 U. S. 160
that he then said, "Will you tell me where she is?" that the
reply was "No; that will be for you to find out;" that the officer
then remarked she was making him considerable trouble, and that she
would get into trouble herself; and the accused replied, "Oh, no;
she won't, till the subpoena is served upon her," and then, after
some further conversation, that "She does not appear in this
case."
It being discovered after the trial commenced that a wrong name
had been inserted in the subpoena, a new subpoena was issued with
the right name, at nine o'clock in the evening. With this, the
officer went again to the house, and there found a person known as
the first wife of the accused. He was told by her that the witness
was not there, and had not been for three weeks. He went again the
next morning, and, not finding her or being able to ascertain where
she was by inquiring in the neighborhood, made return of that fact
to the court. At ten o'clock that morning, the case was again
called, and, the foregoing facts being made to appear, the court
ruled that evidence of what the witness had sworn to at the former
trial was admissible.
In this we see no error. The accused was himself personally
present in court when the showing was made, and had full
opportunity to account for the absence of the witness, if he would,
or to deny under oath that he had kept her away. Clearly, enough
had been proven to cast the burden upon him of showing that he had
not been instrumental in concealing or keeping the witness away.
Having the means of making the necessary explanation, and having
every inducement to do so if he would, the presumption is that he
considered it better to rely upon the weakness of the case made
against him than to attempt to develop the strength of his own.
Upon the testimony as it stood, it is clear to our minds that the
judgment should not be reversed because secondary evidence was
admitted.
This brings us to the consideration of what the former testimony
was, and the evidence by which it was proven to the jury.
It was testimony given on a former trial of the same person for
the same offence, but under another indictment. It was
Page 98 U. S. 161
substantially testimony given at another time in the same cause.
The accused was present at the time the testimony was given, and
had full opportunity of cross-examination. This brings the case
clearly within the well established rules. The cases are fully
cited in 1 Whart.Evid., sect. 177.
The objection to the reading by Mr. Patterson of what was sworn
to on the former trial does not seem to have been because the paper
from which he read was not a true record of the evidence as given,
but because the foundation for admitting the secondary evidence had
not been laid. This objection, as has already been seen, was not
well taken.
5. As to the defence of religious belief or duty.
On the trial, the plaintiff in error, the accused, proved that,
at the time of his alleged second marriage, he was, and for many
years before had been, a member of the Church of Jesus Christ of
Latter-Day Saints, commonly called the Mormon Church, and a
believer in its doctrines; that it was an accepted doctrine of that
church
"that it was the duty of male members of said church,
circumstances permitting, to practise polygamy; . . . that this
duty was enjoined by different books which the members of said
church believed to be of divine origin, and, among others, the Holy
Bible, and also that the members of the church believed that the
practice of polygamy was directly enjoined upon the male members
thereof by the Almighty God, in a revelation to Joseph Smith, the
founder and prophet of said church; that the failing or refusing to
practise polygamy by such male members of said church, when
circumstances would admit, would be punished, and that the penalty
for such failure and refusal would be damnation in the life to
come."
He also proved
"that he had received permission from the recognized authorities
in said church to enter into polygamous marriage; . . . that Daniel
H. Wells, one having authority in said church to perform the
marriage ceremony, married the said defendant on or about the time
the crime is alleged to have been committed, to some woman by the
name of Schofield, and that such marriage ceremony was performed
under and pursuant to the doctrines of said church."
Upon this proof, he asked the court to instruct the jury that,
if they found from the evidence that he
"was married as
Page 98 U. S. 162
charged -- if he was married -- in pursuance of and in
conformity with what he believed at the time to be a religious
duty, that the verdict must be 'not guilty.'"
This request was refused, and the court did charge
"that there must have been a criminal intent, but that if the
defendant, under the influence of a religious belief that it was
right -- under an inspiration, if you please, that it was right --
deliberately married a second time, having a first wife living, the
want of consciousness of evil intent -- the want of understanding
on his part that he was committing a crime -- did not excuse him,
but the law inexorably in such case implies the criminal
intent."
Upon this charge and refusal to charge, the question is raised
whether religious belief can be accepted as a justification of an
overt act made criminal by the law of the land. The inquiry is not
as to the power of Congress to prescribe criminal laws for the
Territories, but as to the guilt of one who knowingly violates a
law which has been properly enacted if he entertains a religious
belief that the law is wrong.
Congress cannot pass a law for the government of the Territories
which shall prohibit the free exercise of religion. The first
amendment to the Constitution expressly forbids such legislation.
Religious freedom is guaranteed everywhere throughout the United
States, so far as congressional interference is concerned. The
question to be determined is, whether the law now under
consideration comes within this prohibition.
The word "religion" is not defined in the Constitution. We must
go elsewhere, therefore, to ascertain its meaning, and nowhere more
appropriately, we think, than to the history of the times in the
midst of which the provision was adopted. The precise point of the
inquiry is what is the religious freedom which has been
guaranteed.
Before the adoption of the Constitution, attempts were made in
some of the colonies and States to legislate not only in respect to
the establishment of religion, but in respect to its doctrines and
precepts as well. The people were taxed, against their will, for
the support of religion, and sometimes for the support of
particular sects to whose tenets they could not and did not
subscribe. Punishments were prescribed for a failure to attend upon
public worship, and sometimes for entertaining
Page 98 U. S. 163
heretical opinions. The controversy upon this general subject
was animated in many of the States, but seemed at last to culminate
in Virginia. In 1784, the House of Delegates of that State, having
under consideration "a bill establishing provision for teachers of
the Christian religion," postponed it until the next session, and
directed that the bill should be published and distributed, and
that the people be requested "to signify their opinion respecting
the adoption of such a bill at the next session of assembly."
This brought out a determined opposition. Amongst others, Mr.
Madison prepared a "Memorial and Remonstrance," which was widely
circulated and signed, and in which he demonstrated "that religion,
or the duty we owe the Creator," was not within the cognizance of
civil government. Semple's Virginia Baptists, Appendix. At the next
session, the proposed bill was not only defeated, but another, "for
establishing religious freedom," drafted by Mr. Jefferson, was
passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the
preamble of this act (12 Hening's Stat. 84) religious freedom is
defined, and, after a recital
"that to suffer the civil magistrate to intrude his powers into
the field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency is a dangerous
fallacy which at once destroys all religious liberty,"
it is declared
"that it is time enough for the rightful purposes of civil
government for its officers to interfere when principles break out
into overt acts against peace and good order."
In these two sentences is found the true distinction between
what properly belongs to the church and what to the State.
In a little more than a year after the passage of this statute,
the convention met which prepared the Constitution of the United
States. Of this convention, Mr. Jefferson was not a member, he
being then absent as minister to France. As soon as he saw the
draft of the Constitution proposed for adoption, he, in a letter to
a friend, expressed his disappointment at the absence of an express
declaration insuring the freedom of religion (2 Jeff.Works 355),
but was willing to accept it as it was, trusting that the good
sense and honest intentions of the people would bring about the
necessary alterations.
Page 98 U. S. 164
1 Jeff. Works 79. Five of the States, while adopting the
Constitution, proposed amendments. Three -- New Hampshire, New
York, and Virginia -- included in one form or another a declaration
of religious freedom in the changes they desired to have made, as
did also North Carolina, where the convention at first declined to
ratify the Constitution until the proposed amendments were acted
upon. Accordingly, at the first session of the first Congress, the
amendment now under consideration was proposed with others by Mr.
Madison. It met the views of the advocates of religious freedom,
and was adopted. Mr. Jefferson afterwards, in reply to an address
to him by a committee of the Danbury Baptist Association (8
id. 113), took occasion to say:
"Believing with you that religion is a matter which lies solely
between man and his God; that he owes account to none other for his
faith or his worship; that the legislative powers of the government
reach actions only, and not opinions -- I contemplate with
sovereign reverence that act of the whole American people which
declared that their legislature should 'make no law respecting an
establishment of religion or prohibiting the free exercise
thereof,' thus building a wall of separation between church and
State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with
sincere satisfaction the progress of those sentiments which tend to
restore man to all his natural rights, convinced he has no natural
right in opposition to his social duties."
Coming as this does from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative
declaration of the scope and effect of the amendment thus secured.
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of
social duties or subversive of good order.
Polygamy has always been odious among the northern and western
nations of Europe, and, until the establishment of the Mormon
Church, was almost exclusively a feature of the life of Asiatic and
of African people. At common law, the second marriage was always
void (2 Kent, Com. 79), and from the earliest history of England,
polygamy has been treated as an offence against society. After the
establishment of the ecclesiastical
Page 98 U. S. 165
courts, and until the time of James I, it was punished through
the instrumentality of those tribunals not merely because
ecclesiastical rights had been violated, but because upon the
separation of the ecclesiastical courts from the civil the
ecclesiastical were supposed to be the most appropriate for the
trial of matrimonial causes and offences against the rights of
marriage, just as they were for testamentary causes and the
settlement of the estates of deceased persons.
By the statute of 1 James I (c. 11), the offence, if committed
in England or Wales, was made punishable in the civil courts, and
the penalty was death. As this statute was limited in its operation
to England and Wales, it was at a very early period reenacted,
generally with some modifications, in all the colonies. In
connection with the case we are now considering, it is a
significant fact that, on the 8th of December, 1788, after the
passage of the act establishing religious freedom, and after the
convention of Virginia had recommended as an amendment to the
Constitution of the United States the declaration in a bill of
rights that "all men have an equal, natural, and unalienable right
to the free exercise of religion, according to the dictates of
conscience," the legislature of that State substantially enacted
the statute of James I., death penalty included, because, as
recited in the preamble, "it hath been doubted whether bigamy or
poligamy be punishable by the laws of this Commonwealth." 12
Hening's Stat. 691. From that day to this, we think it may safely
be said there never has been a time in any State of the Union when
polygamy has not been an offence against society, cognizable by the
civil courts and punishable with more or less severity. In the face
of all this evidence, it is impossible to believe that the
constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of
social life. Marriage, while from its very nature a sacred
obligation, is nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said
to be built, and out of its fruits spring social relations and
social obligations and duties with which government is necessarily
required to deal. In fact, according as monogamous or polygamous
marriages are allowed, do we find the principles on which the
government of
Page 98 U. S. 166
the people, to a greater or less extent, rests. Professor,
Lieber says, polygamy leads to the patriarchal principle, and
which, when applied to large communities, fetters the people in
stationary despotism, while that principle cannot long exist in
connection with monogamy. Chancellor Kent observes that this remark
is equally striking and profound. 2 Kent, Com. 81, note (e). An
exceptional colony of polygamists under an exceptional leadership
may sometimes exist for a time without appearing to disturb the
social condition of the people who surround it; but there cannot be
a doubt that, unless restricted by some form of constitution, it is
within the legitimate scope of the power of every civil government
to determine whether polygamy or monogamy shall be the law of
social life under its dominion.
In our opinion, the statute immediately under consideration is
within the legislative power of Congress. It is constitutional and
valid as prescribing a rule of action for all those residing in the
Territories, and in places over which the United States have
exclusive control. This being so, the only question which remains
is whether those who make polygamy a part of their religion are
excepted from the operation of the statute. If they are, then those
who do not make polygamy a part of their religious belief may be
found guilty and punished, while those who do, must be acquitted
and go free. This would be introducing a new element into criminal
law. Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifices were a
necessary part of religious worship; would it be seriously
contended that the civil government under which he lived could not
interfere to prevent a sacrifice? Or if a wife religiously believed
it was her duty to burn herself upon the funeral pile of her dead
husband; would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices to
the contrary because of his religious belief?
Page 98 U. S. 167
To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and, in effect,
to permit every citizen to become a law unto himself. Government
could exist only in name under such circumstances.
A criminal intent is generally an element of crime, but every
man is presumed to intend the necessary and legitimate consequences
of what he knowingly does. Here, the accused knew he had been once
married, and that his first wife was living. He also knew that his
second marriage was forbidden by law. When, therefore, he married
the second time, he is presumed to have intended to break the law.
And the breaking of the law is the crime. Every act necessary to
constitute the crime was knowingly done, and the crime was
therefore knowingly committed. Ignorance of a fact may sometimes be
taken as evidence of a want of criminal intent, but not ignorance
of the law. The only defence of the accused in this case is his
belief that the law ought not to have been enacted. It matters not
that his belief was a part of his professed religion; it was still
belief, and belief only.
In
Regina v. Wagstaff (10 Cox Crim.Cases, 531), the
parents of a sick child, who omitted to call in medical attendance
because of their religious belief that what they did for its cure
would be effective, were held not to be guilty of manslaughter,
while it was said the contrary would have been the result if the
child had actually been starved to death by the parents under the
notion that it was their religious duty to abstain from giving it
food. But when the offence consists of a positive act which is
knowingly done, it would be dangerous to hold that the offender
might escape punishment because he religiously believed the law
which he had broken ought never to have been made. No case, we
believe, can be found that has gone so far.
6. As to that part of the charge which directed the attention of
the jury to the consequences of polygamy.
The passage complained of is as follows:
"I think it not improper, in the discharge of your duties in
this case, that you should consider what are to be the consequences
to the innocent victims of this delusion. As this contest goes on,
they multiply,
Page 98 U. S. 168
and there are pure-minded women and there are innocent children
-- innocent in a sense even beyond the degree of the innocence of
childhood itself. These are to be the sufferers; and as jurors fail
to do their duty, and as these cases come up in the Territory of
Utah, just so do these victims multiply and spread themselves over
the land."
While every appeal by the court to the passions or the
prejudices of a jury should be promptly rebuked, and while it is
the imperative duty of a reviewing court to take care that wrong is
not done in this way, we see no just cause for complaint in this
case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a
crime in the Territories. This was done because of the evil
consequences that were supposed to flow from plural marriages. All
the court did was to call the attention of the jury to the peculiar
character of the crime for which the accused was on trial, and to
remind them of the duty they had to perform. There was no appeal to
the passions, no instigation of prejudice. Upon the showing made by
the accused himself, he was guilty of a violation of the law under
which he had been indicted, and the effort of the court seems to
have been not to withdraw the minds of the jury from the issue to
be tried, but to bring them to it; not to make them partial, but to
keep them impartial.
Upon a careful consideration of the whole case, we are satisfied
that no error was committed by the court below.
Judgment affirmed.
*
Supra, p.
89 U. S.
147.
MR. JUSTICE FIELD.
I concur with the majority of the court on the several points
decided except one -- that which relates to the admission of the
testimony of Amelia Jane Schofield given on a former trial upon a
different indictment. I do not think that a sufficient foundation
was laid for its introduction. The authorities cited by the Chief
Justice to sustain its admissibility seem to me to establish
conclusively the exact reverse.
NOTE. At a subsequent day of the term, a petition for a
rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the
opinion of the court.
Since our judgment in this case was announced, a petition for
rehearing has been filed, in which our attention is called to the
fact that the sentence of the
Page 98 U. S. 169
court below requires the imprisonment to be at hard labor, when
the act of Congress under which the indictment was found provides
for punishment by imprisonment only. This was not assigned for
error on the former hearing, and we might on that account decline
to consider it now; but as the irregularity is one which appears on
the face of the record, we vacate our former judgment of
affirmance, and reverse the judgment of the court below for the
purpose of correcting the only error which appears in the record,
to-wit, in the form of the sentence. The cause is remanded, with
instructions to cause the sentence of the District Court to be set
aside and a new one entered on the verdict in all respects like
that before imposed, except so far as it requires the imprisonment
to be at hard labor.
