The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1886-01-10


delivered himself up TO the officer.
The grand jury has subdiylded tn
alleged cohabitatIon of the defendan
into three distinct offenses, one (
which may be rightly said to embrac
the year 1888, another the year 1885,
. and another the wear 1885. Upon tn
Indictment for the year 1885 he ha
been already tried and convicted; he
now on trial before YOU on the indict
ment Tor the Year 1884, and the thir,
Indictment yet remains to be tried.
gentlemen OF the jury, you are aske
by the prosecution to convict the de
fendant upon this evidence of the erin
OF unlawtully cohabiting during tn
year 1854 with more than one woman
l claim that neither in act nor intent i
the defendant guilty of the otfens
charged against him. Now, in order t,
arrive at just conclusion as to hi
quit or innocence, you should know
ana consloer the circumstances in " hicf
/ ne was placed at the time. This law o
congress, enacted IN March, 1882. de
clareS tnat II any male person there
after cohdbits with more than one
woman he shall be punished as therein
prescribed. What is the meaning Of
| this word "cohabitY' / do not SPEAK
OF Its present meaning. Tor it has re-
Gently been defined by the Supreme
Court OF the United States in the Can,
non case. But what was the meaning
of this word at the time of the passage
OF the act, and during the wear 1881
prior to its recent definition by the Su
preme Court? You will observe that
Congress does not attempt to define it.
1t is usual for the Legislature to define
more or less specifically the acts which
constitute crime. made punishable by
law. Open any book of criminal STA
| tutes, and you will find that murder
arson,a robbery, and the long catalogue
oil statutory Ofienses are defined with
great particularly; the acts and in
tents which shall constitute them are
laid down with precision, so that all
may know beforehand the nature and
character OF the acts prohibited by law.
But in this law of Congress We have only
the general unlimited term with no at
tempt at definition. Whoever SEQ
habits" shall be punished.
Was, then, this word "cohabit" so
simple in signiticatlOn. so readily I'M
derStood, that no definition was re-
quired? Would all Inen at once under
stand 1t IN the Same sense? On the con-
trary, we find it to be word full of un-
certainty and ambiguity. 1t has one
meaning III popular language, another
in technical language. As the
chameleon changes its hue with every
object on which it rests, so this word
changes its Specification with every sub
jec: to which it is applied. Chief Justice
Zane, delivering the opinion OF our
supreme Court in the case of the
| n vs. =
word of flexible Specification, which
is equivalent TO saying that it is word
Of ambiguous meaning. No one will
deny that in popular use the idea of
sexual intercourse is its essential ele-
ment. If either one OF this jury were
charged with cohabiting with 4 woman,
he would instantly understand that
sexual intercourse was implied by the
charge. As uttered upon the popular
tongue that Is the meaning. The learned
Chancellor WalwOrth. of New York.
held that sexual intercourse
was also the proper legal meaning of the
word. Mr.. Bishop. distinguished law
writer, differs from Chancellor Wal
worth. ana holds mat that idea is not
II essential element in the definition.
The Supreme Court of Utah, after
ong and exhaustive discussion at the |
oar, and great consideration by the |
;ourt, excluded from the definition of |
he term, As used in this act, the idea OF |
exual intercourse. This decision has re- /
.eived the high approval of the
supreme Court OF the United States. |
'ut not It's unanimous approval, for |
NO distinguished members of the /
curt. Justice Field and Justice Miller.
llSSent from the opinion. and Justice
il!er does not hesitate 10 say that he
,noYs O. no Instance II which, in
r;m;aai statute, the word cohabitaticn
as ever been used il any other sense
han that OF sexual intercourse.
Now. gentlemen, there is one fact I
'hich | wish 70 impress strongly upon
our minds, and which | beg that You
ill hold prominently before you at
very step in your investigation of this
ase. II IS this: thatthe decision of the
upreme Court OF Jtah. and the de-
ision of the Supreme Court of the
'nited States. defining this word CO.
a5it, 50 lar As they 10 define it,
'ere both rendered l4t.r The time men
oned In this indictment; after the year
5S4; after the defendant had committed
he acts here charged to be criminal
lie had not the light OF those decisions
} guide his conduct. Those acts were
ommitted as charged at time when
MS word still loated on the waves of
lnbiguity and uncertainty, huctuating
18th every subject 10 which it was APP
lied, Tor the decision OF the Supreme j
curt OF tah was rendered in June, '
$50, and the decision OF the Supreme
curt of the United States has just been {,
nnounced.
But gentlemen, ambiguous and un
.rtain. aS this word ''cohabit,"
len was in its ordinary applications
was peculiarly 80 III its application TO
lie conduct of he defendant and his '
who were living in polyg- I
my. The courts have held that this
" of Congress was enacted With direct 5
ference 10 the system OF polygamy as {
existed in Utah. Congress was aware
lat pOlygamy was sanctioned by the
,ligiOus creed of the Mormons. that it a
as practiced here a I'd this legislation a
as intended to suppress that practice.
For twenty years the law against '
)lygamy, passed in 1862, had stood c
nong the laws of Congress, but the Q
,yernment had taken no energetic
easures to enforce that law. Two or T
rec convictions had been had during o
at time But the law had fallen a
into disuse, and was almost II
dead letter upon the statute book. Y
..r-era I. So