Illinois state journal

              THE MORMON PROBLEM. 
Shall the Laws be Enforced in Utah ? 
Speech of Hon. S. M. Cullom, in the House of Representatives, on the 17th inst. 
Mr. Cullom, Mr. Speaker, if I can ob-tain the attention of the members of the House for a short time I shall endeavor to explain the provisions of the bill that has just been reported from the Committee, and give such reasons as I am able in favor of its adoption. There will probably be no material difference of opinion in regard to most of the sections of the bill among those who believe in the necessity of legislation on this subject. I may be allowed to re-mark at the out set that, in my judgment, the facts, as ascertained by the Committee and as known to the country, show a con-dition of things in the Territory of Utah which determines beyond question that it is our duty to do something in relation to matters there, and that without delay. 
The first two sections of this bill provide for the appointment of deputy marshals in each judicial districts of the Territory, and prescribe the duties which shall devolve upon the marshal and his deputies.  
The third and fourth sections provide for the appointment of assistant district attor-neys in each of the judicial districts of the Territory, and declare that it shall be the duty of the district attorney, in person or by assistants, to attend all the district courts and perform the duties of prosecuting at-torney in all criminal cases arising in said courts. The object of these sections, pro-viding for the appointment of deputy mar-shals and assistant United States Attorneys, is to get rid of the territorial marshals and territorial district attorneys in the trial of causes in the district courts of the Territory, so that whatever writ or process it became necessary to serve, or whatever prosecution it may become necessary to make before those courts, such officers might be had to perform those duties as could be relied upon and as might not be in sympathy with the person or per-sons arraigned before them. These four sections are therefore regarded as necessary legislation for the reason that I have as-signed. 
The fifth and sixth sections provide that only citizens over twenty-one years of age shall be competent grand or petit jurors, and that fifteen good and lawful men shall be the specific number who shall compose, the grand juries of that Territory. The ob-ject of the sixth section is to fix the num-ber who shall compose the grand jury by congressional enactment, so that the Legis-lature of the Territory may not hereafter undertake to change it, to enlarge or reduce the number, and thus make it difficult for the officers of the United States in the Ter-ritory to get such juries as might be nec-essary for the transaction of business. 
The seventh and eighth sections provide that the Marshal of the Territory and Clerk of the Court where the session is held shall select, in the manner prescribed in the sec-tions, the persons who shall compose the grand and petit juries. The spec-ial object of these sections is to set aside or get rid of the Mormon statute, or statute of the territorial Legislature, which makes it impossible to get a grand jury or a petit jury there which would punish polygamy, bigamy, or any crime which might be committed by or under the influence of the Mormon church. The statute of the territorial Legislature pro-vides the modes by which all the juries of the different courts in that Territory shall be selected ; and notwithstanding the Gov-ernment of the United States has its district judges there, and its district courts, and its marshal, and its attorney, and all its various officers of the law, yet, under the territorial law in relation to the selection of juries, they have not the power to select any single jury in any case whatever, or under any cir-cumstances. The second section of chapter thirty-five, being an act defining who are exempt from serving on juries, and pre-scribing the mode of procuring grand and petit juries, and juries for district courts, and for other purposes, provides-- 
"That the county courts in each county shall, at its first session in each year, and at such subsequent session or other time as neglect so to do at such first session or as other circumstances moy require, make from the assessment roll of the county a list contain-ing the names of at least fifty men, residents of the county, eligible to serve as jurors." 
The sixth section provides that upon the reception of said writ (former sections pro-viding that a writ for a jury may issue to the Marshal)— 
The marshal, or the sheriff, as the case may be, or either of their deputies, shall proceed to the clerk of the county court of the county in which juries are to be summoned, and said clerk shall, if a grand jury is required, in the presence of said officer, thor-oughly shake the tickets previously deposited in a box, or other safe place of deposit, and draw there-from promiscuously twenty-four tickets, and the persons whoso names are on those twenty-four tickets shall be summoned to serve as a grand jury, a minute of which drawing shall be kept with said clerk, with the names entered thereon in the order they are drawn. And if petit juries are also required said clerk shall proceed in like manner to draw and minute the twenty-four tickets; and the twenty-four persons named on said tickets shall be summoned to serve as petit jurors. Said clerk and attending offi-cer shall then sign the minutes of the drawing, which minutes shall be filed with said clerk in the office of the county clerk of the county in which said drawing was had. 
Then the thirteenth section of the same act provides that— 
If during the term of the district court the number of jurors provided prove insufficient, the cler of said conrt shall immediately issue a writ, directed to one of the officers before named as the persons to serve such writs, for the requsite number; and said officer shall at once proceed to procure them in the manner hereinbefore provided; and in case such writ exhausts the names already selected, the clerk of the county court of said county shall forthwith call a meeting of said court, which shall immediately select, in the manner already specified, at least as many names as may at that time be doomed suffi-cient. 
These are sections of the statute of the territorial legislature in relation to the manner of procuring grand and petit jurors for the several courts of the Territory; and, as you will perceive, they have been so mi-nute and particular in the framing of that statute that if it is followed by the United States courts of the Territory it is impossi-ble for the marshal of the Territory, or for the judge of either of the district courts, when a jury is necessary for the trial of any case, be it civil or criminal, to summon a bystander, or in any manner pro-cure a jury, grand or petit, in whole or in part, to sit in the Courts of the United States. And the object—as will be plainly seen before I conclude my remarks upon this question—the specific object of this statute is to throw around the United States Courts there such barriers as have made and would continue to make it impossible for them to bring to punishment any crimisnal should he be in favor with the Mormon authorities in that Territory. And, sir, I may say that it is perhaps as much due to the fact that it has heretofore been impossi-ble to procure juries for the trial of cases in that Territory who were not in sympathy with the criminal in every instance, that no convictions are procured; I say it is as much due to that fact, perhaps, if not more, than to any other, that criminals have, from the organization of the Territory up to the present hour, gone unwhipped of justice in almost every instance. 
The county courts of the several counties of the Territory are presided over by what are called probate judges. Who are the probate judges of that Territory? They are men holding high position in the Mor-mon church; and elected by the territorial Legislature. The territorial Legislature is elected by the people, but Brigham Young and other lenders control the mass of the people, and only men high in authority in the church are sent to the Legislature. No-body ever occupies a seat in the Legisla-ture, as the testimony shows, and is well known there, who is not a prominent char-acter in the Mormon church. The bish-ops or other high officers of the church are the men who go to the Legislature 
These sections which I have referred to provide, as I have said, the manner of se-lecting the juries; and not only do they provide for the selection of juries for the regular terms of the court which may be held in the Territory, but they provide for whatever contingency may arise in reference to extra sessions or terms of court, or for whatever increase of business may occur in either of the courts of the Territory. By the adoption of these sections we not only get rid of the territorial statute which places the selection of the juries entirely in the hands of men opposed to the en-forcement of the law, but provide a sim-ple and uniform mode of selecting the juries of the courts of that country, which I regard as very essential, and who make the laws of the Territory, and they are the men, too, who appoint the probate judges of the several counties of the Territory. These probate judges are all bishops, and it is not to be expected, from what is known of the spirit of these people, that bishops occupying the position of county judges, with power tinder the statute of controlling the selection of the juries of the Territory, would allow any man's name to be found in the box which contained the list of grand and petit jury-men, who was not pledged or known beyond question to be opposed to the prosecution of any man for the commission of any crime countenanced and sanctioned by the doctrines and spirit of Mormonism. So that, as I have already said, it is a moral and a legal impossibility ever to secure the indict-ment or conviction of any man in the Terri-tory guilty of bigamy, which is made a crim-inal offense by the statute of the United States of July 1, 1862. 
The ninth section simply provides for the redisricting of the judicial districts of the Territory. This has been regarded as neces-sary, growing out of the fact that some years ago, and since the Territory was or-ganized, a portion of the southern part of the Territory was detached and made a part of the State of Nevada. Besides, the Pacific railroad, recently completed, run-ning along the northern portion of the Ter-ritory, has given an impetus to business in that section, and consequently increased the population of that portion of the Ter-ritory to a great extent. The last part of that section gives the Governor of that Territory the power, when it shall be deem-ed necessary to be exercised by him, to provide for changing the regular terms of the court to such times as may be regarded by him as necessary for the acommodation of the people. 
The tenth section provides that in all criminal cases both the prosecution and the accused shall have the right to challenge for cause the array and poll both of the grand and petit jurors, and that in all pros-ecutions for bigamy and other crimes speci-fied in the act no person shall be a compe-tent juror, either grand or petit, who be-lieves in, advocates, or practices bigamy, concubinage, or polygamy; and upon that fact being ascertained, such person being presented as a juryman shall be excused from service for cause. This section is very important, because if we allow to re-main upon our statute books of the country laws making bigamy or polygamy a criminal offense, and intend to punish the commis-sion of such crimes through the means of the civil authorities, it is idle to expect that it can be done by juries who believe in the right to commit such offenses or who open-ly advocate and practice them in the face of law. I regard this provision as in entire harmony with the practice and rules estab-lished and controlling all our courts everywhere. It is hardly necessary for me to say that it is not an infraction upon any rule, law, or principle, or upon the rights of parties in any manner, to exclude from the jury-box, in the trial of a man for mur-der, a man who would answer upon his ex-amination by the courts as to his fitness that he was opposed to the infliction of cap-ital punishment in a case where the accused is proven guilty, and the law declares that a party guilty of such crime should be pun-ished with death. The courts of the coun-try always exercise the right to exclude from the jury-box a man who is not a law-abiding citizen in the trial of any case, civil or criminal. And it is in accordance with this generally recognized principle that the committee have incorporated this provision in the section that I am now discussing, ex-cluding men from the jury-box, as jurymen where the accused is to be tried for the of-fense of bigamy, polygamy, or concubinage, who believe in, advocate, or practice such a crime. 
The eleventh section of the bill provides that the lawful wife of the accused, in cases of prosecution for bigamy, concubinage, or adultery, shall be a competent witness to prove the first, as well as any subsequent marriage of her husband, but for no other purpose. The main object of this section is to provide some manner to prove the first marriage of the man, and the reason why the wife is made by this section a compe-tent witness rests on the fact that it is next to impossible in that Territory to prove by competent testimony, under the rules of evidence in relation to marriages, the mar-riage of anybody to anybody or by any-body. While, as I have shown, barrieis have been placed on all sides where an attack was likely to be made to pre-vent conviction for the commission of the crime of bigamy in that Terri-tory so as to render a convietion almost im-possible, I might cite this fact as another reason why the courts have been unable to convict anybody for the crime of bigamy. Mormon marriages are conducted in a secret manner. They take place in what is called the "endowment house" and under such circumstances that no Gentile or Gentile court or Federal officer, none but those sworn to secrecy, can ever ascertain any facts connected with the ceremony, or the time or place of its performance. There-fore the committee have provided that the lawful wife shall be competent to prove the marriage or marriages of her husband. If the laws of the country are to be enforced and offenders punished there must be some means of arriving at the facts. 
The twelfth section of the bill recites the fact that marriages in that Territory rest solely upon the contract of the parties fol-lowed by cohabitation. By the laws of the Territory no form or ceremony is drescribed for the solemnization of this important re-lation. There is no law requiring a record, certificate, or publication of the fact to be made. So that, as I said before in refer ence to the reasons for adopting the eleventh section, there is no possible way of proving the first, second, third, or other marriage except by showing the fact of cohabitation between the man and the woman; that the man treated the woman as his wife; by his declarations and admissions acknowledging that such a woman was his wife, or that such women were his wives. And this sec-tion provides that upon producing such proof of cohabitation or admissions and de-clarations showing that he treated the wo-man as his wife, such testimony should be suf-ficient to produce conviction unless it was rebutted by proper testimony. And the section further provides that marriages may be proven by the [ordinary evidences pro-duced to prove marriages in other cases, and by such testimony of fact and circum-stances as I have before stated. 
The thirteenth section may be perhaps egarded, in the main, as a new feature in legislation in this country. It provides that any man who shall live or cohabit with one or more other than his lawful wife, as his wife or wives, shall be adjudged guilty of the crime of concubinage, and upon con-viction be punished by a fine not exceeding $1,000, and imprisonment in the peniten-tiary not exceeding five years. This section is to make the cohabitation with more than one woman the gist of the crime, thereby getting rid of the difficulty and necessity of proving a marriage in prosecutions for con-cubinage ; and it provides that the alleged concubines shall be competent witnesses to establish the guilt or to disprove the charge. The right to introduce, as competent wit-nesses, the alleged concubines of a man upon the trial of a cause, either for or against him, is no infraction of the ordinary rules of evidence; because, upon the theory that these women are not the wives of the party, they are competent witnesses under the ordinary rules of evidence, as I have before stated ; and, as is well known in the different States where statutes have been passed making bigamy a criminal offense, m nearly every instance these stat-utes declare that the second marriages are void, are a nullity, and the courts have held that such women, so married contrary to law, shall be regarded as competent wit-nesses upon the trial of any case where the husband is involved. 
The fourteenth section simply provides that the statute of limitations shall not bar the prosecution of any of the crimes speci-fied in she bill, nor for the crime of bigamy or adultery hereafter committed. Con-cubinage being for the first time a criminal offense, it is not necessary to declare that the statute of limitation shall not operate against it as a crime now existing, because until this bill be-comes a law it is not a crime of which the courts can take cogizance. This section is not open to the objection that it reaches back and enables the courts of the country to prosecute for crimes committed before the passage of the law, because it expressly deciares that it shall not run as a bar against the prosecution for the crime of bigamy or adultery hereafter committed. 
The fifteenth section declares that any person who shall commit the crime of adul-tery shall be punished by imprisonment not exceeding five years nor less than one, and by a fine not exceeding $2,000 nor less than $100. And it provides also that indictments may be procured against persons commit-ting the crime of adultery, and against per-sons violating the act to punish and prevent the practice of polygamy in the Territories of the United States, and against persons guilty of the crime of concubinage ; and violations of the law against bigamy, con-cubinage, and adultery may all be charged in the same indictment. 
In the thirty-first section of the act in re-lation to crimes and punishments, in the laws of the Territory of Utah, it is provided that— 
"Every person who commits the crime of adultery shall be punished by imprisonment not exceeding twenty years and not less than three years, or be fined not exceeding $1,000 and not less than $300, or both fine and imprisonment, at the discretion of the court. And when the crime is committed between parties either one of whom is married, both are guilt-ty of adultery and shall be punished accordingly. To prosecution for adultery can be commenced but on the complaint of the husband or wife." This is the section of the territorial law providing for the punishment of the crime of adultery. 
This section by the fifteenth section of this bill is repealed and a specific punishment provided for parties commit-ting the offense, the object of the repeal being to get rid of the last clause of the section, which provides that no prosecution for adultery can be commenced but on the complaint of the husband or wife, which was to prevent any prosecutions at all for the commission of those offenses where the the parties belonged to the Mormon church. It also provides that in case the marriages, as they are termed in the Territory, accord-ing to the Morman faith, should be deemed null and void, and the parties living or cohabiting together, having other wives or husbands, should be deemed guility of adultery, that then there could be no means of prosecuting the parties for the commis-sion of the offense except in the mode pre-scribed in this statute, being upon the testi-mony of the husband or wife, which would be another barrier to a successful prosecu-tion. 
The sixteenth section simply provides the necessary means of securing the prisoners arrested, to which of course there can be no objections. 
The seventeenth section provides that if the United States marshal or his deputies shall be resisted or threatened with resist-ance in the performance of his duty, he shall apply to the military commander of the United States forces, if there are any in reach, to aid him in the performance of his duty, whatever it may be, and it shall be the duty of the military to render such as-sistance as may be necessary in the premi-ses. The only difference between the au-thority given by this section and that which, sheriffs and marshals everywhere through-out the country possess, is simply that these officers shall apply to the military force, if such be there, instead of relying upon a posse, as in the other case of citizens. And the reason for this must be apparent to every one, for, as the Mormans compose the vast majority of the population of Utah, under the control and guidance of their church, and not in symythy with Federal officers or Federal courts, in case of any attempt on the part of the marshal or his deputies to arrest a man upon a writ issued by the authority of the Government on a charge of bigimy, polygamy, or concubit-nage, the mass of the people would be against the Government and its officers, and in favor of the individual, and they could not be relied upon if summoned as a posse by the marshal in order to enforce the au-thority of the Government. Therefore there is no resource but to rely upon the military. 
The eighteenth section simply provides that the Governor shall have power to pre-vent abuse of prisoners in the jail or peni-tentiary of the Territory, which is a humane and necessary provision. 
[CONCLUDED TO-MORROW].