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33 L.Ed. 637
U.S.
Supreme Court
DAVIS
v. BEASON, Sheriff
133 U.S.
333, 10 S.Ct. 299
February
3, 1890
Appeal from the third judicial
district of the territory of Idaho.
In April, 1889, the appellant,
Samuel D. Davis, was indicted in the district court of the
third judicial district of the territory of Idaho, in the
county of Oneida, in connection with divers persons named,
and divers other persons whose names were unknown to the
grand jury, for a conspiracy to unlawfully pervert and obstruct
the due administration of the laws of the territory, in
this: That they would unlawfully procure themselves to be
admitted to registration as electors of said county of Oneida,
for the general election then next to occurin that county,
when they were not entitled to be admitted to such registration,
by appearing before the respective registrars of the election
precincts in which they resided, and taking the oath prescribed
by the statute of the state, in substance as follows: 'I
do swear (or affirm) that I am a male citizen of the United
States, of the age of twenty-one years, (or will be on the
6th day of November, 1888;) that I have (or will have) actually
resided in this territory four months, and in this county
for thirty days, next preceding the day of the next ensuing
election; that I have never been convicted of treason, felony,
or bribery; that I am not registered or entitled to vote
at any other place in this territory; and I do further swear
that I am not a bigamist or polygamist; that I am not a
member of any order, organization, or association which
teaches, advises, counsels, or encourages its members, devotees,
or any other person, to commit the crime of bigamy or polygamy,
or any other crime defined by law, as a duty arising or
resulting from membership in such order, organization, or
association, or which practices bigamy, polygamy, or plural
or celestial marriage as a doctrinal rite of such organization;
that I do not and will not, publicly or privately, or in
any manner whatever, teach, advise, counsel, or encourage
any person to commit the crime of bigamy or polygamy, or
any other crime defined by law, either as a religious duty
or otherwise; that I do regard the constitution of the United
States, and the laws thereof, and the laws of this territory,
as interpreted by the courts, as the supreme laws of the
land, the teachings of any order, organization, or association
to the contrary notwithstanding, so help me God,'--when,
in truth, each of the defendants was a member of an order,
organization, and association, namely, the Church of Jesús
Christ of Latter-Day Saints, commonly known as the 'Mormon
Church,' which they knew taught, advised, counseled, and
encouraged its members and devotees to commit the crimes
of bigamy and polygamy as duties arising and resulting from
membership in said order, organization, and association,
and which order, organization, and association, as they
all knew, practiced bigamy and polygamy, and plural and
celestial marriage as doctrinal rites of said organization;
and that, in pursuance of said conspiracy, the said defendants
went before the registrars of different precincts of the
county, (which are designated,) and took and had administered
to them respectively the oath aforesaid. The defendants
demurred to the indictment, and, the demurrer being overruled,
they pleaded separately not guilty. On the trial which followed,
on the 12th of September, 1889, the jury found the defendant
Samuel D. Davis guilty, as charged in the indictment. The
defendant was thereupon sentenced to pay a fine of $500,
and, in default of its payment, to be confined in the county
jail of Oneida county for a term not exceeding 250 days,
and was remanded to the custody of the sheriff untill the
judgment should be satisfied. Soon afterwards, on the same
day, the defendant applied to the court before which the
trial was had, and obtained a writ of habeas corpus,
alleging that he was imprisoned and restrained of his liberty
by the sheriff of the county; that his imprisonment was
by virtue of his conviction, and the judgment mentioned,
and the warrant issued thereon; that such imprisonment was
illegal; and that such illegality consisted in this: (1)
That the facts in the indictment and record did not constitute
a public offense, and the acts charged were not criminal
or punishable under any statute or law of the territory;
and (2) that so much of the statute of the territory which
provides that no person is entitled to register or vote
at any election who is 'a member of any order, organization,
or association which teaches, advises, counsels, or encourages
its members, devotees, or any other person, to commit the
crime of bigamy or polygamy, or any other crime defined
by law, as a duty arising or resulting from membership in
such order, organization, or association, or which practices
bigamy or polygamy, or plural or celestial marriage as a
doctrinal rite of such organization,' is a 'law respecting
an establishment of religion,' in violation of the first
amendment of the constitution, and void. The court ordered
the writ to issue, directed to the sheriff, returnable before
it at 3 o'clock in the afternoon of that day, commanding
the sheriff to have the body of the defendant before the
court at the hour designated, with the time and cause of
his imprisonment, and to do and receive what should then
be considered concerning him. On the return of the writ,
the sheriff produced the body of the defendant, and also
the warrant of commitment under which he was held, and the
record of the case showing his conviction for the conspiracy
mentioned and the judgment thereon. To this return, the
defendant, admitting the facts stated therein, excepted
to their sufficiency to justify his detention. The court,
holding that sufficient cause was not shown for the discharge
of the defendant, ordered him to be remanded to the custody
of the sheriff. From this judgment the defendant appealed
to this court. Rev. St. § 1909.
West Headnotes
Constitutional
Law k84.5(1)
92k84.5(1)
(Formerly
92k84)
Constitutional
Law k84.5(12)
92k84.5(12)
(Formerly
92k84)
Rev.St.Idaho,
§§ 501, 504, which provide that no person "who is a bigamist
or polygamist, or who teaches, advises, counsels, or encourages
any person or persons to become bigamists or polygamists,
%Y(3)* or to enter into what is known as plural or celestial
marriage, or who is a member of any order *** which teaches,
advises, counsels, or encourages its members or devotees,
or any other persons to commit the crime of bigamy or polygamy,
or any other crime defined by law, either as a rite or ceremony
of such order *** or otherwise, is permitted to vote at
any election, or to hold any position or office of honor,
trust, or profit within this territory," and require every
person desiring to register as a voter to take an oath that
he does not belong to such an order, are valid, and not
unconstitutional as being a "law respecting an establishment
of religion."
Elections
k60
144k60
Rev.St.
Idaho §§ 501, 504, disqualifying from voting or holding
office any bigamists or polygamists, or persons who teach,
or belong to any order which teaches or advises, the practice
of polygamy, and requiring every person desiring to register
as a voter to take an oath that he does not belong to such
an order, is not nullified by Act Cong. March 22, 1882,
disqualifying polygamists from voting or holding office
in the territories generally.
**300
*337 F. S. Richards, S. Shellabarger, and J.
M. Wilson, for appellant.
*341
H. W. Smith, for appellee.
Mr. Justice
FIELD, after stating the facts as above, delivered the opinion
of the court.
On this
appeal our only inquiry is whether the district court of
the territory had jurisdiction of the offense charged in
the indictment, of which the defendant was found guilty.
If it had jurisdiction, we can go no further. We cannot
look into any alleged errors in its rulings, on the trial
of the defendant. The writ of habeas corpus cannot
be turned into a writ of error to review the action of that
court. Nor can we inquire whether the evidence established
the fact alleged, that the defendant was a member of an
order or organization known as the 'Mormon Church,' called
the 'Church of Jesús Christ of Latter-Day Saints,'
or the fact that the order of organization taught and counseled
its members and devotees to commit the crimes of bigamy
and polygamy, as duties arising from membership therein.
On this hearing we can only consider whether, these allegations
being taken as true, an offense was committed of which the
territorial court had jurisdiction to try the defendant.
And on this point there can be no serious discussion or
difference of opinion. Bigamy and polygamy are crimes by
the laws of all civilized and Christian countries. They
are crimes by the laws of the United States, and they are
crimes by the laws of Idaho. They tend to destroy the purity
of the marriage relation, to disturb the peace of families,
to degrade woman, and to debase man. Few crimes are more
pernicious to the best interests of society, and receive
more general or more deserved punishment. To extend exemption
from punishment for such crimes would be to shock the moral
judgment of the community. To call their *342 advocacy
a tenet of religion is to offend the common sense of mankind.
If they are crimes, then to teach, advise, and counsel their
practice is to aid in their commission, and such teaching
and counseling are themselves criminal, and proper subjects
of punishment, as aiding and abetting crime are in all other
cases. The term 'religion' has reference to one's views
of his relations to his Creator, and to the obligations
they impose of reverence for his being and character, and
of obedience to his will. It is often confounded with the
cultus or form of worship of a particular sect, but
is distinguishable from the latter. The first amendment
to the constitution, in declaring that congress shall make
no law respecting the establishment of religion or forbidding
the free exercise thereof, was intended to allow every one
under the jurisdiction of the United States to entertain
such notions respecting his relations to his Maker and the
duties they impose as may be approved by his judgment and
conscience, and to exhibit his sentiments in such form of
worship as he may think proper, not injurious to the equal
rights of others, and to prohibit legislation for the support
of any religious tenets, or the modes of worship of any
sect. The oppressive measures adopted, and the cruelties
and punishments inflicted, by the governments of Europe
for many ages, to compel parties to conform, in their religious
beliefs and modes of worship, to the views of the most numerous
sect, and the folly of attempting in that way to control
the mental operations of persons, and enforce an outward
conformity to a prescribed standard, led to the adoption
of the amendment in question. It was never intended or supposed
that the amendment could be invoked as a protection against
legislation for the punishment of acts inimical to the peace,
good order, and morals of society. With man's relations
to his Maker and the obligations he may think they impose,
and the manner in which an expression shall be made by him
of his belief on those subjects, no interference can be
permitted, provided always the laws of society, designed
to secure its peace and prosperity, and the morals of its
people, are not interfered with. However free the **301
exercise of religion may *343 be, it must be subordinate
to the criminal laws of the country, passed with reference
to actions regarded by general consent as properly the subjects
of punitive legislantion. There have been sects which denied
as a part of their religious tenets that there should be
any marriage tie, and advocated promiscuous intercourse
of the sexes, as prompted by the passions of its members.
And history discloses the fact that the necessity of human
sacrifices, on special occasions, has been a tenet of many
sects. Should a sect of either of these kinds ever find
its way into this country, swift punishment would follow
the carrying into effect of its doctrines, and no heed would
be given to the pretense that, as religious beliefs, their
supporters could be protected in their exercise by the constitution
of the United States. Probably never before in the history
of this country has it been seriously contended that the
whole punitive power of the government for acts, recognized
by the general consent of the Christian world in modern
times as proper matters for prohibitory legislation, must
be suspended in order that the tenets of a religious sect
encouraging crime may be carried out without hindrance.
On this
subject the observations of this court through the late
Chief Justice WAITE, in Reynolds v. U. S., are pertinent.
98 U. S. 145, 165, 166. In that case the defendant was indicted
and convicted under section 5352 of the Revised Statutes,
which declared that 'every person having a husband or wife
living, who marries another whether married or single, in
a territory or other place over which the United States
have exclusive jurisdiction, is guilty of bigamy, and shall
be punished by a fine of not more than five hundred dollars,
and by imprisonment for a term not more than five years.'
The case being brought here, the court, after referring
to a law passed in December, 1788, by the state of Virginia,
punishing bigamy and polygamy with death, said that from
that day there never had been a time in any state of the
Union when polygamy had not been an offense against society,
cognizable by the civil courts, and punished with more or
less severity; and added: 'Marriage, while from its very
nature a sacred obligation, is, nevertheless, in most civilized
nations a *344 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 the people, to a greater or less extent,
rests.' And, referring to the statute cited, he said: '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 deyond 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? 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.'
And in Murphy v. Ramsey, 114 U. S. 15, 45, 5 Sup. Ct. Rep.
747, referring to the act of congress excluding polygamists
and bigamists from voting or holding office, the court,
speaking by Mr. Justice MATTHEWS, said: 'Certainly no legislation
can be supposed more wholesome and necessary in the founding
of a *345 free, self-governing commonwealth, fit
to take rank as one of the co- ordinate states of the Union,
than that which secks to establish it on the basis of the
idea of the family, as consisting in and springing from
the union for life of one man and one woman in the holy
estate of matrimony; the sure foundation of all that is
stable and noble in our civilization; the best guaranty
of that reverent morality which is the source of all beneficent
progress in social and political improvement. And to this
end no means are more directly and immediately suitable
than those provided by this act, which endeavors to withdraw
all political influence from those who are practically hostile
to its attainment.' It is assumed by counsel of the petitioner
that, because no mode of worship can be established, or
religious tenets enforced, in this country, therefore any
form of worship may be followed, and any tenets, however
destructive of society, may be held and advocated, if asserted
to be a part of the religious doctrines of those advocating
and practicing them. But nothing is further from the truth.
While legislation for the establishment of a religion is
forbidden, and its free exercise permitted, it does not
follow that everything which may be so called can be tolerated.
Crime is not the less odious because sanctioned by what
any particular sect may designate as 'religion.'
It only
remains to refer to the laws which authorized the legislature
of the territory of Idaho to prescribe the qualifiations
of voters, and the oath they were required to take. The
Revised Statutes provide that 'the legislative power of
every territory shall extend to all rightful subjects of
legislation not inconsistent with the constitution **302
and laws of the United States. But no law shall be passed
interfering with the primary disposal of the soil; no tax
shall be imposed upon the property of the United States;
nor shall the lands or other property of non-residents be
taxed higher than the lands or other property of residents.'
Rev. St. § 1851. Under this general authority it would seem
that the territorial legislature was authorized to prescribe
any qualifications for voters, calculated to secure obedience
to its laws. But, in addition to the above law, section
1859 of the Revised Statutes *346 provides that 'every
male citizen above the age of twenty-one, including persons
who have legally declared their intention to become citizens
in any territory hereafter organized, and who are actual
residents of such territory at the time of the organization
thereof, shall be entitled to vote at the first election
in such territory, and to hold any office therein; subject,
nevertheless, to the limitations specified in the next section,'
namely, that at all elections in any territory subsequently
organized by congress, as well as at all elections in territories
already organized, the qualifications of voters and for
holding office shall be such as may be prescribed by the
legislative assembly of each territory, subject, nevertheless,
to the following restrictions: First, that the right
of suffrage and of holding office shall be exercised only
by citizens of the United States above the age of 21, or
persons above that age who have declared their intention
to become such citizens; second, that the elective
franchise or the right of holding office shall not be denied
to any citizen on account of race, color, or previous condition
of servitude; third, that no soldier or sailor, or
other person in the army or navy, or attached to troops
in the service of the United States, shall be allowed to
vote unless he has made his permanent domicile in the territory
for six months; and, fourth, that no person belonging
to the army or navy shall be elected to or hold a civil
office or appointment in the territory. These limitations
are the only ones placed upon the authority of territorial
legislatures against granting the right of suffrage or of
holding office. They have the power, therefore, to prescribe
any reasonable qualifications of voters and for holding
office, not inconsistent with the above limitations. In
our judgment, section 501 of the Revised Statutes of Idaho
territory, which provides that 'no person under guardianship,
non compos mentis, or insane, nor any person convicted
of treason, felony, or bribery in this territory, or in
any other state or territory in the Union, unless restored
to civil rights; nor any person who is a bigamist or polygamist,
or who teaches, advises, *347 counsels, or encourages
any person or persons to become bigamists or polygamists,
or to commit any other crime defined by law, or to enter
into what is known as plural or celestial marriage, or who
is a member of any order, organization, or association which
teaches, advises, counsels, or encourages its members or
devotees, or any other persons, to commit the crime of bigamy
or polygamy, or any other crime defined by law, either as
a rite or ceremony of such order, organization, or association,
or otherwise, is permitted to vote at any election, or to
hold any position or office of honor, trust, or profit within
this territory,'--is not open to any constitutional or legal
objection. With the exception of persons under guardianship
or of unsound mind, it simply excludes from the privilege
of voting, or of holding any office of honor, trust, or
profit, those who have been convicted of certain offenses,
and those who advocate a practical resistance to the laws
of the territory, and justify and approve the commission
of crimes forbidden by it. The second subdivision of section
504 of the Revised Statutes of Idaho, requiring every person
desiring to have his name registered as a voter to take
an oath that he does not belong to an order that advises
a disregard of the criminal law of the territory, is not
open to any valid legal objection to which out attention
has been called.
The position
that congress has, by its statute, covered the whole subject
of punitive legislation against bigamy and polygamy, leaving
nothing for territorial action on the subject, does not
impress us as entitled to much weight. The statute of congress
of March 22, 1882, amending a previous section of the Revised
Statutes in reference to bigamy, declares 'that no polygamist,
bigamist, or any person cohabiting with more than one woman,
and no woman cohabiting with any of the persons described
as aforesaid in this section, in any territory or other
place over which the United States have exclusive jurisdiction,
shall be entitled to vote at any election held in any such
territory or other place, or be eligible for election or
appointment to, or be entitled to hold any office or place
of public trust, honor, or emolument in, under, or for any
such territory or place, or under the United States.' 22
St. 31. *348 This is a general law applicable to
all territories and other places under the exclusive jurisdiction
of the United States. It does not purport to restrict the
legislation of the territories over kindred offenses, or
over the means for their ascertainment and prevention. The
cases in which the legislation of congress will supersede
the legislation of a state or territory, without specific
provisions to that effect, are those in which the same matter
is the subject of legislation by both. There the action
of congress may well be considered as covering the entire
ground. But here there is nothing of this kind. The act
of congress does not touch upon teaching, advising, and
counseling the practice of bigamy and polygamy, that is,
upon aiding and abetting in the commission of those crimes,
nor upon the mode adopted, by means of the oath required
for registration, to prevent persons from being enabled
by their votes to defeat the criminal laws of the country.
The judgment of the court below is therefore affirmed.
NOTE.--The
constitutions of several states, in providing for religious
freedom, have declared expressly that such freedom shall
not be construed to excuse acts of licentiousness, or to
justify practices inconsistent with the peace and safety
of the state Thus, the constitution of New York of 1777
provided as follows: 'The free exercise and enjoyment of
religious profession and worship, without **303 discrimination
or preference, shall forever hereafter be allowed, within
this state, to all mankind: provided, that the liberty of
conscience hereby granted shall not be so construed as to
excuse acts of licentiousness, or justify practices inconsistent
with the peace or safety of this state.' Article 38. The
same declaration is repeated in the constitution of 1821,
(article 7, § 3,) and in that of 1846, (article 1, § 3,)
except that for the words 'hereby granted,' the words 'hereby
secured' are substituted. The constitutions of California,
Colorado, Connecticut, Florida, Georgia, Illinois, Maryland,
Minnesota, Mississippi, Missouri, Nevada, and South Carolina
contain a similar declaration.
Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
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