NATIONAL INTELLIGENCER.
The annexed able examination of the legality of the Mormon institution of Polygamy was address-ed by an officer of the army in Texas to his friend, a distinguished officer of the army in Washington, whose acknowledgment of the communication is also subjoined, and who has placed both papers in our hands for publication.
POLYGAMY IN UTAH:
Or Squatter Sovereignty vs. the Common Law of the States.
The opinion has thus far prevailed among all who are strict in construing the Constitution, or, in other words, among a large majority of the nation, that even the abo-mination of polygamy in a Territory is too strongly in-trenched under the rights of squatter sovereignty to be reached by any prohibition of the General Government. The fruits brought forth, however, in Utah and Kansas by this kind of provincial independence, working under the immunity wherewith the ideas of the day invest it, warn us to seek diligently for some safe principle under which local abuses in the Territories may be curbed Without taking ground for unwarrantable interference. New and untried it might be, but sound and constitu-tional it must be to take effect among a people so jealous as ours of aught that may compromit local institutions; yet there is such a principle, never yet mentioned, so far as I know, in this connection, which I believe would afford the needful ground for action without stirring up in the most morbid mind its growing fears of Federal intervention.
It is what, by a new application of an old term, might be called the common law of the United States. There are many legal principles and points of law which are com-mon to all the States, and have been since their exist-ence, and which are applicable to all localities; and these, being the common law of the States, must neces-sarily be the law of their common domain. What is for-bidden by law in every State cannot be legalized, and what is allowed by law or inherent right in all the States cannot be restrained in the Territories, which are their joint possession. This of course includes not political rights, which are peculiar to State sovereignties, though common to them all, nor other things that are locally inapplicable; but the points of moral law and social right, on which the States are unanimous, suit every region. This principle has always been vaguely felt by the people, and recognized to some extent in a social and practical, though not in a broad legal sense. I am no lawyer nor much acquainted with the history of prece-dents, and I do not know that it has more than once been even partially or indirectly recognized by any court; but once, in a limited way, it was by the highest tribu-nal in an important case—that of Dred Scott. The grounds on which the decision therein was made were not only that the right of property involved was con-structively sanctioned by the Constitution, but that it was founded on what was originally the common law of the States or Colonies, which had only been locally re-pealed with regard to some of the States and still had effect in the Territories. The Federal Constitution merely recognised what that common law had establish-ed, and, had it been silent on the subject, I believe the right would have been sustained by the same court as one pre-existent to the Constitution and not repealed by it. That court, I opine, recognized but a single point in a principle of national law which has never yet come broadly before it; for if this common law of the States is valid in a Territory as to a right of property, it must be valid as to rules of right and wrong which concern the general welfare as deeply and the people more uni-versally; and if a right of property becomes valid in a Territory because it once existed in all the States and still does in a portion, more surely ought any social right or moral restriction to become valid in the Territories, when it always has, without intermission or exception, existed in all the States. Polygamy is a crime by the laws of all the States, and ever has been. No man, rich or poor, carries with him from any State to a Territory the right to a plurality of wives; but every man, poor or rich, carries with him a right to one wife, which po-lygamy, as a monopoly of the rich, would impair; and every woman so migrating carries with her a right to that social equality and freedom which polygamy is known to destroy. Consequently, polygamy cannot be legalized in the common domain, because repugnant to the common law of the States. If a Federal court could not, merely on this deduction, punish it as a crime, it could, I believe, on this alone pronounce on its ille-gality and release those who are oppressed or restrain-ed by it, and that to this extent the difficult matter of polygamy is reached by law already.
What is by the Constitution of the Union or the uni-versal law of the nation unlawful in its common domain the common Government of the Union has a right to prohibit and consequently punish. Congress could not exempt a Territory from the common law of the States, because no such powers, express or implied, were grant-ed to it; but when once that common law is recognized, Congress has the same implied right and duty to carry it out in the Territories which it has to provide them with executive and judicial offices, with garrisons, and other means of order and safety. It has in a late instance acted on this principle; for, though it was not named, the action could be based on nothing else. Why did Congress forbid the Territory of Kansas to legislate on the subject of slavery? Because it presumed, as the Supreme Court afterwards decided, that the old common law of the States on that subject already existed there, and was paramount to any law Kansas could make. It could with the same propriety forbid Utah to modify any other domestic institution over which the same com-mon law is paramount. Squatter sovereignty could as safely be restrained from polygamy as from "abolition." In the Territories their lack of basis is identical, and yet the stricter constructionists, who live in dread of imaginary usurpation, have assimilated the right of a polygamist to that of a slaveholder.
A Federal statute to prohibit polygamy would not long be wanting were the people convinced that one could be passed without impairing the principle which guards the safety of local institutions. Such fears might well be entertained if in such enactment Congress were govern-ed merely by its own will. But how could the danger arise from a law of the Union which takes the unanimi-ty of State law as its guide? or how could any State be aggrieved by a National law to punish beyond that State's jurisdiction what she herself would punish with-in it?
Robbery within each State is punished by its own laws; robbery on the ocean is punished by a law of the Union, and no State is injured by it. A law from the same source to punish polygamy in the common domain of the States could involve no more danger of usurpa-tion than does the law to punish piracy on the common highway of nations; nor could such a law involve any more peril if directed against any other practice which the States repudiate in common. I do not cite the cases of piracy and polygamy as identical throughout, the one being against the common law of nations, and the other against the common law of the States; but they are per-fectly analogous so far as concerns the safety of allow-ing the General Government to punish any crime com-mitted outside of the States, which all of them would punish within their respective bounds.
The most that squatter sovereignty can claim is the right to all local legislation not incompatible with the Constitution and laws of the United States; and the common law of the States as here defined is, I assert, as much a part of the unwritten Constitution of the land as is any other principle too nationally inherent to need parchment for its basis. Such a principle may long re-main latent, as this has done, till events call it into ac-tion. For half a century after the written Constitution covered without quenching it, it was not even discussed; and when it became a theme for agitation only one bear-ing of it was perceived; and it was long before even that was judicially admitted; but I am convinced that it only bides the approaching time of its need for recognition in its broad application. The single bearing of it which the written Constitution constructively confirms was na-turally the first to be recognised; and those which it does not repeal will follow at the call of events.
The rights of squatter sovereignty to licentious abuse have been defended on mistaken grounds of liberty of conscience; but that liberty which every emigrant car-ries with him from a State to a Territory does not allow him to sanctify what, by the law of all the States, is a crime. As he cannot go from his own to another State and adopt polygamy as a part of his religion, he cannot do it on going to the common domain; neither can a foreign emigrant bring with him a greater license than is possessed by a native citizen. Neither Utah nor any territory we have acquired brought with it any old local rights incompatible with the common law of the States; nor could any such be lawfully guarantied by treaty, es-pecially in any acquisition intended to become any thing more than a subject province. Polygamy, though not so high a crime, is as much within the category of crimes in every State as murder, and the one is in our country as repugnant to religious sanction as the other. We may at some future day acquire a territory on the Pacific suf-ficiently open to Asiatic emigration to give it a majority of Hindoo population; and they, under the glorious rights of squatter sovereignty, may establish a more venerable though not a purer faith than Mormonism; for who could refuse to the mythic Brahma what is allowed to the unpoetical Joe Smith? If the followers of the latter can sanctify polygamy, those of the former may as justly legalize the burning of the polygamous widows by the dozen and the car-crushing of mad devotees by the score. Yet, if the common law of the States against crime is to be powerless before squatter sovereignty, re-ligious murder will enjoy the same immunity as priestly brothels.
It may be argued that the extension of a prohibitory law over the Territories would eventually prove insuffi-cient, since the abuses it aims at, though for the time being repressed, could revive in the same region under a State constitution. In reply I would say let early prevention obviate the need of a remedy which later could not reach the disease; let the early planting of wholesome law root out the germ of future corruption; or, if such preventive fail, let no sovereignty be allowed to germinate along with such pestilent growth. Among the fallacies wherewith the ideas of the day have invest-ed squatter sovereignty is one which may be called the right of intrusion. Because by the Constitution new States may be admitted by the Congress with a republi-can form of government, it follows on strict construction that every pretender of a State must be admitted, if, without any other element of fitness, it presents that empty form which even a Haytien Republic could offer. When a depraved and lawless frontier province, whose sovereign mob counts but half the constitutional basis for one representative, has per force to be admitted as a State because it presents a certain parchment form, the work perhaps of only one faction of its rabble, then truly strict construction strains at a gnat and swallows a camel. But this right of intrusion is an absurdity which must disappear before the necessities of our growth. The right to admit implies the right to reject; and the ad-mitting power must be the judge of fitness, in all requi-sites save the two that are named. There must be a re-publican form of government and no trenching on the jurisdiction of other States. The naming of these two does not bar the use of discretion as to others which experience may show to be essential, nor make the lack of those two the only objections to be considered. The framers of the Constitution had no eye to "manifest des-tiny" when they produced their few meagre provisions relative to Territories and new States; yet this vague-ness, being adaptable to a wide range of conditions, was doubtless better suited to a future whose wants they could not foresee than any specific rules they could then have framed. If our domain continues to widen as it did during the first half of this century, we must erelong have Territories which will have to bide a longer pupil-age and a more thorough renovation of population than any have yet done, before they can presume to claim ad-mission to the family of States; and we will probably have others which will never become eligible for that adoption. The right to acquire domain carries with it the right to govern, and the consequent right of adapting the Territorial administration to the capacity of the gov-erned, and of continuing it as long as circumstances re-quire, though the term be endless. The inherent right of the people to local self-government is, in a Territory, subordinate to the inherent right of the General Govern-ment to rule over what it holds or acquires for the States, whose common interest it must guard; and either of those rights can cede to the other according to the ability of the inhabitants to make and execute their own laws. Our Constitution does not recognise in all races the in-herent right of self-government, nor does reason recog-nise it in any so long as the inherent capacity for it is lost. A fragment of population in which that capacity is undeveloped or extinct is not of "the people" in the constitutional sense of the word. No one would claim that rank or quality now for a savage tribe or a penal colony, nor will it a few years hence be claimed for any population which approaches the condition of either. Should we, then, hereafter have provinces in a permanent and deserved state of pupilage, they would have little grounds for complaint and we as little for apprehension, so long as State law continues unanimous in all essential rules of right and wrong, and extends those wholesome rules over the common domain. It is that unanimity of State law in all that most concerns the social fabric, which, more than the Federal Constitution, makes us one people, and when it ceases no compact can preserve the bond of union. TEXANUS.
SAN ANTONIO, TEXAS, JUNE 24, 1858.
About two weeks after I had finished my late article under the above title, I was told that my argument had been anticipated five years ago by Mr. Chas. J. Peter-son, in Graham's Magazine for May, 1853; but on read-ing his able essay for the first time I perceived, though there were points of identity in both arguments, their bases were different, as they assumed two distinct prin-ciples of law for meeting the case of polygamy. Though the difference ought to be obvious, it might not be so to a hasty perusal; and hence a brief note to explain it may not be amiss. Mr. Peterson argues that as the ba-sis of our colonial and State legislation was the common law of England, the main body of the same, as such, and under its old denomination, must still be in force in the Territories; but he gives no rule whereby to determine what portion remains unrepealed. The persistent refu-sal of the Federal courts, however, to recognise such a principle, at least with any breadth of application, ren-ders it hopeless that Pagan abuses in the Territories can be reached by it; and the jealousy of a portion of the people as to things which the body of English common law might interfere with would prevent its being taken up as a guide for Federal legislation on the Territories. There would be no such objection to taking for that guide the unanimity of State law, which all would un-derstand, none need be shy of. The common law of the States, which, as I assume, must necessarily be the law of their common domain, is not the common law of Eng-land, nor any thing derived exclusively from it. It con-sists of all legal principles and points of law on which the States are unanimous, and which are applicable to all localities, whether originating from colonial or State statutes, from general and established American custom, or adopted portions of English common law, or French and Spanish civil law. Neither does it matter, so long as the States are unanimous on any one point, whether they take it from one source or not. If all the States have laws against polygamy, derived in different ones from all those sources, the unlawfulness of the practice is still as much the common law of the States, and ought just as much to extend over the Territories as if the pro-hibitions were all taken from a single code. Portions of English common law enter into this common law of the States not because they have come from the Saxon por-tion of our ancestry, but because they now belong to us; not because they have been for ages English, but because they have become universally American. The decision of the Dred Scott case, made, as I conceive, under this common law of the States, could not have been based on an application of English common law to the Territories.
TEXANUS.
WASHINGTON, JULY 26, 1858.
I have read with pleasure and profit your interesting paper on the polygamy of the Mormons, also the article in Graham's Magazine on the same subject from the pen of Mr. Peterson, to which you refer in your note of the—instant. You, I think, are right as far as you go, and Mr. Peterson, though his paper is one of great abili-ty, is wrong.
There is no common law of the United States as a sepa-rate and independent Power; but every State has its common law. That common law was principally derived from the mother country. It was the birthright of our ancestors, and emigrated with them to the colonies—or so much of it at least as was suited to their circumstances. There were three elements in the common law of Eng-land at the exodus of our fathers: the Roman, the Saxon, and the Norman, or feudal. The Norman element was left behind; or if any portion of it was brought over, not finding a congenial soil, it, like a sickly plant, with-ered and died. The maxim of the Norman element of the common law, "Nemo potest exuere patriam," so cher-ished and strenuously defended by the mother country, has never for a moment been recognised here; and it was in opposition to that favorite maxim of England that we made the war of 1812.
We, as well as our fathers, have always recognised the Roman element of the common law, that "every one is at liberty to choose the State of which he wishes to be a member." This is the maxim in the code of the Roman republic so beautifully eulogized by Cicero in one of his orations—I think it was for Cornelius Balbus, for it is over forty years since I read it—wherein he exclaims, "O glorious laws, when no one, contrary to his will, can be deprived of his citizenship; when no one, con-trary to his inclinations, shall be obliged to continue in that relation." "The power," he adds, "of retaining or renouncing our rights of citizenship is the best foun-dation of our liberties." The common law, as it has been naturalized here, is a part of the law of every State; it comprehends and includes the social customs and moral relations of the whole people, and in some measure their religious habits, though not their creeds. But, apart from this common law, which belongs to each and every State of the Union, there are laws, recognised by all civilized and Christian nations, which apply not only to each of them as a separate and independent State, but to the Union as a single State. These are the laws of nations. The General Government is not autho-rized by any provision of the Constitution to acquire or govern Territories not organized into States; nor was such & provision necessary; for the Constitution consti-tutes the States of the Union, for certain specified pur-poses, a separate and independent political Power. The General Government has, under the laws of nations, the same rights, within the terms of that Constitution, which England, France, Russia, or any other independent Power possesses; and it may rightfully, therefore, not only acquire territories and colonies, but provide for their government when so acquired.
Had the Constitution of the United States not been adopted the several separate States would have been so many sovereign and independent nations under the laws of nations. They are so still, where the Constitution has not modified those laws, and the laws of nations thus become a part of the municipal law of the Confederacy. Any domain acquired belongs, therefore, to all the States, not under the Constitution, but under the laws of nations; and every person in every one of the States of the Union has the right to go into the common domain with all the rights he or she has at home; but with no more nor greater rights. And under no circumstances, either of law or policy, can that which is a crime, and punishable by the laws of the separate States, be allowed in the common domain as the right of any body. As you justly remark, every man is entitled, in every State, to one wife and no more; so every woman is entitled to one husband, not a part of a husband. Now, this is an absolute right, and the ninth amendment to the Consti-tution secures to the people, women as well as men, all their rights. And so long as that amendment forms part of the Constitution, polygamy, even were it not a crime by the laws of every State in the Union, could not be legally established or even countenanced in any portion of the common domain; because it nullifies the rights of an entire sex, constituting one-half of the whole people. SYDNEY.
