The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-02-19
peace has been restored and a stable
government established
LEGAL ASPECTS OF THE CASE.

j In response to the request of an o.
den correspondent for the legal as
pect of the Roberts case the opinion
recently published by the Edward
! Thompson Law-book company in their
Law Notes is given 1t is clear
and common sense article and certainly
an able presentation of the law bearing
on this case.
1t reads as follows:
Concerning the qualifications of Mr..
/ Brigham H. Roberts as a member of
the house of representatives, it seems
/ to us that a great deal is being SAID
and written which is wholly irrelevant
and wide of the mark. Whether or not
] polygamy is immoral, and whether or
not it is prohibited by the Bible, we
will leave for others 10 discuss; as we
Will also the question whether polyg-
amy is, in itself, pernicious. And we
will not attempt to say that congress
cannot, upon admitting a territory into
| the Union, require that ii shall adopt
into its constitution restrictions upon
its sovereignty not contained in the
constitution of the United States, which
restrictions shall be irrevocable, though
We have grave doubts as to the bind
ing effect of such limitations. Mr.
Roberts is a polygamist, and is now
living with several wives as their nus
band. Some years ago in Utah terri
tory, when and where it was not un-
lawful for him to DO so, ne married
several women, and he is still contlnu-
ing the relationship 20 them which he
then entered into. The only statute in
Utah against polygamy provides SIM
ply that every person who has a nus
band or wife living, who hereafter mar
rieS another" is guilty of polySamy;
and the constitution of that state pro-
Vides no more than that "polysamous
or plural marriage are forever pro-
hibited." Mr.. Roberts is violating no
statute of the United States. because
the Edmunds act applies only TO "a
territory or other place over which the
United States has exclusive jurisdie-
tion," and congress has no power or
which we have ever heard to prohibit
polygamy in a state. The enabling act
of Utah. if binding in this particular
upon the state of Utah, provides simply
that a constitutional provision shall be
adopted by which ''polygamous or plu-
raj marriages" are forever prohibited.
9 g @
Each house the constitution of the
United States provides. shall be the
judge of the qualifications of its own
vides also what shall be the qualifica-
lions of a member of the house of rep
resentatives, and what shall disquiltfy
a person from being a member. We
suppose, and we dare say that all
writers upon the constitution agree that
the power of the house of representa-
tiVeS to judge of the qualifications of
its members is more than the power TO
decide whether or not one elected as
a member has the qualifications re-
quired by the constitution. No one
would pretend, to take an extreme case,
that it would be unconstitutional for
the house TO refuse a seat TO a. man
who is discovered 10 be a leper, for its
own self-preservatiOn would require his
exclusion. although the constitution
does not say that no one shall be a rep
resentative who has the leprosy.
But all will doubtless agree
that the house should be chary in
declaring a man disqualified Tor rea-
sons not found in the constitution. To
authorize the house in refusing a seat
to man upon grounds not within the
terms of the constitution, an eXtraordi
nary exigency should exist, and the
house should be acting only for its OWE
protection, and for the purpose of en-
abling 1t TO perform its high powers.
The house should not inquire into the
morals of any one Of its members, be-
cause by doing so it would be, in a
measure, adopting for the state which
he represents, and enforcing, 4 code of
morals for the state-thereby unWar-
rantably interfering with its sover-
eighty. When John Randolph was
elected TO congress he was not Il years
old, and when the house incurred his
age he told its members to ask the peo-
pie of Virginia. With much more reason
might Mr.. Roberts, when he is ques-
toned as to whether he is a polygamist,
say: ASK the people of Utah We
are aware that the house has the power
10 refuse a seat TO Il man because his
hair is red, or because he does not wear
patent leather shoes. and that he would !
be without redress were ii to do so, but !
we deny that it has the constitutional |
right to so act, or that any member |
could vote for his exclusion on such !
grounds without violating mis- oath of !
office. AS well might a member from |
Maine, IL which state the sale of in
toXicating liquors is prohibited by the |
and is supposed to be i'm |
moral, vote against seating a man be |
cause he is u liquor dealer, as vote !
against seating Mr.. Roberts.
Mr.. Roberts is not violating the con- |
of either the United States or /
Utah, nor is he violating any statute |
Of Utah. The enabling act of Utah may !
be binding in morals and good con-
science upon the people of Utah, and it |
may not be, and probably is rot, con-
stitutional in so far as it forbids their |
reVoking, without the consent of the |
United States, the ordinance in their |
forever prohibiting polYg- |
amous or plural marriages; but, waiv-
ng these questions, il does not, in our
opinion. fit the case of Mr.. Roberts, for
We do not believe that he has violated,
u is violating, either its terms or its
spirit by continuing to maintain the
citation of husband to the wives whom
lie took when it was lawful for him to
10 so. 1t is true that "polygany"
means the having a plurality of wives
n husbands at the same time, bat it
s not polygamy that is prohibited, hut
'polyGamous or plural marriages" evil
lently meaning the act of marrying
when already married to another.
This law journal also points out that
he house has no right to resolve itself
nto a court for the trial Of criminal
asses. It cites the fact that IN indict-
nent is pending in l'ennsyl-
-ania against Senator Quay, charging
i'm with embezzlement, and similar in
ictment lies against Senator Kenney
f Delaware. But these men. until con-
icted, are not disqualified to hold their
eats in congress; nor will the senate
Undertake to pronounce them guilty
'ithout a trial or undertake to try a
lan for an alleged offense committed
4 Pennsylvania or Delaware.
These are only the legal aspects of
he case, and have nothing to do with
he moral sentiments or political oppo-