National Republican. (Washington City (D.C.)) 1872-1888, 1886-05-15

concern TO the United states that Il shall not
he Kept private or confidential, and, therefore.
II the spirit of this bill be observed, anything
which will tend to the conviction OF either
pnrty OF any Of the crimes condemned In this
law ought TO be eNacted Of the husband or
Wife. That in law could not be considered
confidential because that Is lust what the law
iSrCaching for, and the law would DO absurd
10 say that we make you competent witnesses
for the purpose of proving certain thing, aud
yet we SO construe the law that the thing Is
confidential OF which the law is In search, or
that the evidence which establishes the fact is
confidential. Therefore | say II Is absurd to
state that any limitation Of confidence VIII be
ono of the first principles of lust legislation
is that II shall be equal; that II shall be uni.
form. This bill does not propose TO mako the
husband and wife witnesses against each other
In all cases. II is not statute changing the
rule Of evidence In that respect through the
United States, nor Is II statute changing the
rule Of evidence In that respect In the terri
tory Of Utah, but II Is a statute changing the
rule OfcvidencC In respect to Mormon prose.
CutiOns and none others. II does not apply
TO GCntilcs. II Is not a rule of evidence that
can be applied to ordinary cases in the terri.
tory Of Utah. II Is not general in respect TO It's
application to the United States Mt large, nor Is
1t general In respect to its application to the
territory Of Utah at large, but 1t Is partial and
special and oppressive and directed at II class
Of people in the territory of Utah.
Judge Cooley and writer's on the cOn'tltu.
ton hold that laws ought tobc equal; that that
ably not be held that this law would be un.
constitutional because of It's inequality, but
this committee has TO do not only with the
constitutional objection, If there be one, but II
haste 90 with the question whether this would
be wise law or not
Mr.. stewart. 10 yOu say that this law has no
Application to the Gcntiles in the territory of
Mr. Chandler. Tint is what said
Nj. stew art. What is your authority for say
Ing o. The provisions of this law general,
ana would he IN force over every part Of the
United states whore the statutes prevail.
Mr.. Chandler. Well, the provisions of the
third section Of the law rs II stands are as fol-
lows:
THAT If any male person. In a territory or
other place over which the United states has
exclusive Jurisdiction. hereafter cOhabits with
more than one woman hU shall be deemed
guilty Of n lnisdcnennor, and on conviction
tfcrt Of shall be punished by fine Of not more
than $500 or by imprisonment for not more
than six months, or by both said puuishments
In the discretion Of the cOult."
III. Yet the supreme Court hold that that sec
ton only applies to Murmous and actul cases
where the vice which Is supposed to be con-
demncd by that section have been brought
before the court, aud the party charged with
II being IA Gentle he was released on habcas
corpus, because II was snid that the intent OF
Congress was to deal with the subject of pOlyg-
amy, bigamy, and uulnwini cohnbtation
among MUfmons. Now, that certainly Is rs
general IN It's Language MS tits bill. 1.-THE Ed
munds law, which is general, does not Apply to
Illicit relations between Gcittles will 1t be
held that this bill Is dealing with Illicit rcla.
tiClS b. tween GCntiles!
Mr. stewart. DO You say that II Presbyte-
rinn or EpisCopaliAn or Methodist or anybody
else was prosecuted under this statute in any
territory ofthe United States or in the District
OF Columbia, that the objection you raise here
could be made to this statute2 Is that your
opinion as a lawyer
Mr. Chandler. II would not be II II were not
for the decision of the Supreme Court, am
Mr.. stewart. They have not given construc.
ton of this statute.
Mr.. Chandler. But they have given con.
StructiOn to the law already in operation, and
am unable to distinguish between the general
character of the law us II now Is and the gem
eral character OF this section as proposed. II
Is held that the law as II now is Is confined to
Mormon defendants, and II seems to condemn
all who unlawmlly cohabit; yet the supreme
Courtlsay that n is evident 1t was the inten-
tion Of Congress to limit it to MormOns
Mr.. Stewart. WHAT case Is that?
The Chairman. / suppose that the fact Is
that If the Supreme Court said so II was mere
obiter dctum. Has there been any Gentle
arraigned under that section OF the Eimunds
bill upon whom II operates?
Mr. Chandler. The chief Justice Of the terri
tory released a man upon writ OF habeas
corpus on that construction, and understand
the supreme Court Of the United States has
accepted that construction of the statute us the
Mr. Stewart. That case was not before the
United States Supreme Court was 1t?
Mr.. Collins. Was II in his petition OF habeas
corpus that he was not Il Mormon?
Mr., Chandler That was the ground upon
Which the case was decided.
Mr.. Stewart. You have no record of that case
here, no opinion OF the chief Justice, have
you? But no matter. The phraScoOgy OF this
Section Sc, med to be 81 broad that / could not
understand any possible ground Tor making
Mr. Chandler The record will show that
the party was released on hGbeas corpus. II
will show the grounds upon which he was re-
leased, and Il was because. when this law was
construed, II was held not to apply TO ordinary
cases Of open and notorious adultery as distin-
guished from alleged unlawful cohnbita-
ton. The party who was the victim OF this
relation was the sister of the mans Wife, aud
the relation was notorious and fragrant; but 1t
was held, and think, without being able to
turn TO 1t this moment, thatthe supreme Court
Itself has said that<his was not for the purpose
ofpuriiying the morals OF the people generally,
but was dealing with the subject OF Norm N
marriage and relations only. ] am satisfied
the Supreme Court so held.
Judge Rogers At that point VIII call your at
tenliOn TO class of decisions with which you
are familiar and which, perhaps, mlsleGd YOU
on that point. You are aware that IN several
states the statutes forbid cohabitatlon. Now
so far MS my own reading has gone, open and
notorious crimes Of this Bind are not sufficient
10 make out illegal CohabitatiOn, but that IN
order to make out Illegal cuhubitaton under
the statutes IL Is essential that the parties shall
have assumed the marriage relation, or hold
themselves out as such. There Is that diStin ,
ton between case of illegal cohabitation and
the one You are trying to sustain.
Mr.. Chandler. If that is the character eX
position of this statute then IL confirms ms
statement that the statute itself adopts the
definition Of COhabitailon which you give, aud
limits its operations TO Mormons, and that is
Mr.. Stewart. II limits its operations to pOlyga
mist marriages. In other words II Is not aimed
at the general crime, of impurity, but bigamisI
81. l,s.a 10 NUaV
Judge Rogers That is the square issue that
suggested TO you and If you will allow me
Will state II again. In the one case society Is
not in the slightest degree imposed upon by
open and notorious adultery of the parties. In
the other case, where Mr. Smith holds out q
party that is not Mrs. Smith rs Mrs smith, he
does impose fraud on the society where no
lives, and the supreme court Of my own state
made that distinction in the determination OIL
that question. In other words although the
oOhabltatiOn existed in both cases. the holding
out TO the community and to society the idea
that the man was married to the woman made
the difference, and yet the man living In open
adultery cannot he convicted under the statute
in my state Of Illegal cohabitattOn. 1t make:
no difference how notorious II may be, this
Illegal cohabltation does not exist, but II the
marriage relations hold outfit the assumption
Of the false relation T. presented TO so2lety-
then the law takes hold and Furnishes the, man
whether he belongs to the Mormon religion Ol
not, for the crime Of illegal COhabitatiOn.
Mr. Chandler. Now, does 1t not resolve ltsel
into this Here Is Il man who holds out by hi,
conduct that he Is guilty Of Illicit cohab!tation
lie does not introduce his partner in the
Oilcnsc as his wife, but he assumes this offensive
relation publicly and VIGOROUSLY, and that
is called notorious adultery, and Is deemed u,
such. Now, here Is another party who says
claim certain relation, legal relation, with
my partner In business; but the Ofelse In ~
moral character, so the auti.MOrmOls say, l.
precisely similar in moral terpitude to the OF
tense under the other name. The two tranSac
tiOns differ from each other only In this In on,
no prttcnse Ofmarrlagc Is made, there i9nOpre
tense Of honesty, no prctcnsl OF decGncy, IL
the other there isn claim of dGcGncy, aud that
Is condemned the more severely Of the two
Certainly there II not the moral state ofpo!lu
ton in the one rs In the other In the ont
case there is total depravity and abandonmen
made public in the other there Is u claim tina
It Is honest, and how the Transaction that 4
precisely the same in Its outward feature
should be condemned more harShly because |
is pretended 10 be honest than the one al
mittcd TO be dishonest | do not see, But /
does seem 10 me that the constituents of tn
two matters are different IN this-onc relation