History of Salt Lake City, Part 39

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194

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"ACT OF CONGRESS AGAINST POLYGAMY.

" I respectfully call your attention to an Act of Congress passed the first day of July, 1862, entitled " An Act to punish and prevent the practice of polygamy in the Territories of the United States, and in other places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah." (Chap. CXXVII. of the Statutes at Large of the last Session of Congress, page 501.) I am aware that there is a prevailing opinion here that said Act is uncon- stitutional, and therefore it is recommended by those in high authority that no regard whatever should be paid to the same-and still more to be regretted, if I am rightly informed, in some instances it has been recommended that it be openly disregarded and defied, meanly to defy the same.

" I take this occasion to warn the people of this Territory against such dan- gerous and disloyal counsel. Whether such Act is unconstitutional or not, is not necessary for me either to affirm or deny. The individual citizen, under no cir- cumstances whatever, has the right to defy any law or statute of the United States with impunity. In doing so, he takes upon himself the risk of the penal-

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ties of that statute, be they what they may, in case his judgment should be in error. The Constitution has amply provided how and where all such questions of doubt are to be submitted and settled, viz : in the courts constituted for that pur- pose. To forcibly resist the execution of that Act would, to say the least, be a high misdemeanor, and if a whole community should become involved in such resistance, would call downu pon it the consequences of insurrection and rebellion. I hope and trust that no such rash counsels will prevail. If, unhappily, I am mistaken in this, I choose to shut my eyes to the consequences.

"LIBERTY OF CONSCIENCE.

"Amongst the most cherished and sacred rights secured to the citizens of the United States, is the right ' to worship God according to the dictates of con- science.' It would have been strange indeed, if the founders of our Government had not thrown around the citizen this irrevocable guaranty, when it is remem- bered that so many of the framers of the Constitution must have been familiar with the acts of the British Parliament against 'non-conformists,' and had wit- nessed the injustice and hardship resulting therefrom. They had seen men of the most exalted abilities and virtues excluded from places of public trust for no other reason than that they would not subscribe to all of the dogmas of a church established by law. They had witnessed, at the same time, other men of the most questionable integrity and morality clothed in the robes of prelate and bishop, exacting without stint or mercy, enormous revenues from an unwilling people, and spending the same in the pursuit of an unholy ambition, and in a luxury that better befitted some Eastern satrap than the followers of 'the meek and lowly Jesus,' in whom they professed to believe. In the light of their past experience, and inspired by the great primal truths of the Declaration, the 'in- defeasible rights of man to the enjoyment of life, liberty and the pursuit of hap- piness' still sounding in their ears, they founded a government on the basis of religious tolera.ion, before unknown to mankind. This could not well have been otherwise, from the very nature of things. It was the inevitable corollary that proceeded from the premises, and thus was it that religion was made a matter be- tween man and his Maker, and not between man and the Government.

" But here arises a most important question, a question perhaps that has never yet been asked or fully answered in this country-how far does the right of con- science extend ? Is there any limit to this right? and, if so, where shall the line of demarcation be drawn, designating that which is not forbidden from that which is? This is indeed a most important inquiry, and from the tendency of the times, must sooner or later be answered. I cannot and will not on this occasion pretend to answer this question, but will venture the suggestion that when it is answered the same rules will be adopted as if the freedom of speech and of the press were in- volved in the argument.

"Let us refer to this provision of the Constitution ; it is found in the first article of the amendments: 'Congress shall make no laws respecting the establish- ment of religion, or prohibiting the free exercise thereof, or abridging the free- dom of speech or of the press' Can we logically infer from the above provision that these rights are not co-relative, or that they do not rest on the same princi-

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ples? that one of these rights is of more importance to the citizen than the other, and that his duty in their ' free exercise' is not the same? I think not.

" Let us briefly examine this proposition. Because ' the freedom of speech and of the press' is guaranteed, can the citizen thereby be allowed to speak slanderously and falsely of his neighbor? Can he write and print a libel with impunity? He certainly cannot ; and his folly would almost amount to idiocy if he should appeal to the Constitution to shield him from the consequences of his acts. But the question may be asked-why not ? The answer is at hand. Simply because he is not allowed to abuse these rights. If, upon a prosecution for slan- der or libel, the defendant should file his plea setting up that provision of the Constitution as a matter of defense, the plea would not only be bad on demurrer, but the pleader would be looked upon as a very bad lawyer. Will any one in- form me why the same parity of reasoning should not apply in one case as the other ?

" That if an act, in violation of law and repugnant to the civilization in the midst of which that act has been committed, should be followed by a prosecution, could be justified under the guaranty of the Constitution securing the 'free ex- ercise of religion' more than in the case above cited? I shall pause for an answer. There can be no limits beyond which the mind cannot dwell, and our thoughts soar in their aspirations after truth. We may think what we will, believe what we will, and speak what we will, on all subjects of speculative the- ology. We may believe with equal impunity the Talmud of the Jew, the Bible of the Christian, the Book of Mormon, the Koran, or the Veda of the Brahmin. We cannot elevate, other than by moral forces, the human soul from the low plane of ignorance and barbarism, whether it worships for its God, the Llama of the Tartars, or the Beetle of the Egyptians. But when religious opinions assume new manifestations and pass from mere sentiments into overt acts, no matter whether they be acts of faith or not, they must not outrage the opinions of the civilized world, but, on the other hand, must conform to those usages established by law, and which are believed to underlie our civilization.

" But, the question returns-Is there any limit to the ' free exercise of re- ligion?' If there is not, then in the midst of the nineteenth century, human victims may be sacrificed as an atonement for sin, and "widows may be burned alive on the funeral pile." Is there one here who believes that such shocking barbarisms could be practiced in the name of religion, and in the 'free exercise thereof' in any State or Territory of the United States? If not, then there must be a limit to this right under consideration, and it only remains for the proper tribunal at the proper time to fix the boundaries, as each case shall arise involving that question.

" POWERS VESTED IN THE GOVERNOR BY THE ORGANIC ACT.

" The Act of Congress organizing the Territory of Utah, and providing a Government therein, defined with sufficient certainty the duties of each depart- ment in said Government. These several departments were made to consist of the Executive, the Legislative and the Judicial. Amongst the duties imposed upon the Governor, is that of nominating certain officers, by and with the advice and consent of the Council. The first question that arises under this head is, what

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officers are to be nominated by the Governor? The seventh section of said Act is in the following words : 'And be it further enacted, that all township, dis- trict and county officers, not herein otherwise provided for, shall be appointed, or elected, as the case may be, in such manner as shall be provided for by the Gov- ernor and Legislative Assembly of the Territory of Utah.' The Governor shall nominate, and by and with the advice and consent of the Legislative Council (not Assembly) appoint all officers not herein otherwise provided for, etc. Town- ship, district and county officers are to be appointed or elected, as the case may be, in such manner as the Governor and Legislative Assembly may direct. It is clear to my mind that the Organic Act contemplates two classes of officers, viz : township, district and county, and another class not included in the former, which embraces all officers strictly Territorial, such as attorney-general for the Territory, marshal, auditor, treasurer, etc.

"I cannot arrive at any other conclusion in the examination of the Act, than that the officers not included in the first class must be appointed by the Governor, by and with consent of the Legislative Council, and cannot be elected, as in the former instance, by joint ballot of the Legislative Assembly, have held such offices contrary to law and have been removed upon the prosecution of a writ of quo warranto. It follows further, that if such officers acted without authority of law their acts were void, and are not binding upon the citizens. This becomes a question of much importance when we consider the hardship and inconvenience that may hereafter grow out of the same. I respectfully submit for your consider- ation, whether it would not be safer either to pass some law legalizing the acts of such persons, while in the supposed discharge of their duties, or it may be that it would require an Act of Congress legalizing such assumed official acts.

" Before dismissing this part of my subject, I feel it to be my duty to suggest to you whether a very grave question may not hereafter arise as to the authority of the Legislative Assembly to elect by joint ballot any of the officers denomin- ated as ' township, district or county officers.' I have been unofficially advised that the word 'election' as used in the Organic Act, might be held to refer to the people, and not to the Legislative Assembly. If such a question should hereafter arise, and such a possible view should be taken in deciding this question, it would involve the most serious consequences. I will express no opinion on the subject. I only raise the question for your consideration.

" REVISION AND CODIFICATION OF THE STATUTES.

" I respectfully call your attention to the necessity of a thorough revision and codification of the statutes of this Territory. I am aware that something was attempted at your last session in that direction ; but it seems to me that the committee which had that duty under their charge stopped far short of what was required at their hands. It is the duty of the law makers to leave the statutes by which the people are to be governed so plain in their several requirements that the stranger cannot be misled. It is extremely difficult to ascertain what precise statutes are in force on many subjects in this Territory. Besides this, there are many provisions in the statutes manifestly unjust, and whilst they remain must be considered anomalies. I will not consume time in any argumentation on this

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subject, believing that it will be only necessary to call your attention to the facts as they exist.

" Amongst the most objectionable of these provisions, may be found the fol- lowing in the revised statutes of 1855, and which are still in force :

" Chap. 5, relating to justices of the peace. Secs. 8, 15, 19.

" Chap. 3, relating to the procedure in civil cases. Sec. 28.

"Chap. 6, relating to attorneys-at-law. This whole chapter should be re- pealed.

"Chap. 12, relating to estates of decedents. Secs. 14, 24, 25, 26. The great objection to these sections is, that no limit whatever is fixed to the value of the estate, thereby cutting off claims which ought to be paid, when there is enough to do so, and still the family will be left in comfortable circumstances.

" Chap. 18, in relation to divorces. There should be a specified time when such notice of the pendency of the application should be given to the defendant. Sec. 18, in the same chapter, gives the probate judge power too plenary. In ques- tions of so much importance, the party should have the benefit of a trial by jury.

" Chap. 32 should be stricken from the statute. No such crime as treason against a Territory is known to the laws.

"I call your attention especially to sections 112 and 113, under the title of ' Justifiable Killing, and the Prevention of Public Offences.' These provisions are too palpably unjust to stand a day on your statutes. It would be an easy matter for a man to be murdered, and yet under these provisions his murderer could escape under the plea that the circumstances were such as to excite his fears that certain acts either would be done or had been, for which he claimed the immunity of the statute. If your laws against the offenses therein named are not sufficiently penal, make them so; but to authorize by a public statute the kill- ing of a man on mere suspicion that he has committed or will commit certain acts, which are less than capital upon his conviction after a fair trial, seems to be most cruel and unjust. In China, it is said that a high Mandarin of the ' blue button ' may kill with impunity a person suspected of stealing rice, and cut open his stomach to find the evidence of his guilt. In no other instance have I been able to find any statute or custom analogous to the one under consideration. No com- munity can adopt the principles contained in that statute without soon becoming (dropping the figure) ' as a whitened sepulchre filled with dead men's bones.

" VOTING BY BALLOT.

"I respectfully call your attention to Chap. 47, Sec. 5, in relation to voting at elections by ballot. Said section is as follows: 'Each elector shall pro- vide himself with a vote containing the names of the persons he wishes elected, and the offices he would have them fill, and present it neatly folded to the judge of the election, who shall number it and deposit it in the ballot-box. The clerk shall then write down the name of the elector opposite the number of his vote.' Why the elector should be required to provide himself a vote and present it neatly folded, perhaps can be satisfactorily explained ; but I confess that the ob- ject of voting by ballot is completely defeated by the above provisions. Why

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not vote viva voce at once. The great object to be obtained in voting at our popular elections is absolute freedom of the elector in depositing his vote. Hence it is that in most, if not all the States, the right of voting by secret ballot is secured to the elector by stringent laws. The reason is obvious. A thousand circumstances might so completely surround the elector that he would be com- pelled oftentimes to vote against the convictions of his judgment, and yet could not, if interested and powerful parties were permitted to exercise their control over him in the discharge of one of his most sacred duties.

" In connection with this subject, I take pleasure in adopting the language of my worthy predecessor, Governor Cumming, as being eminently fit and proper : ' Many of the laws now on the statute book were passed under a con- dition of things which will soon cease to exist. You cannot reasonably anticipate a continuance of the partial isolation which has characterized your early his- tory in this region. It must be borne in mind, that you- are situated upon the great highway between the oceans, which is already traversed by expresses and telegraphs, and is soon to witness the establishment of a railroad trans- porting through your valleys the commodities of the world. It would be well that you make timely preparation for changes that are fast approaching you; and are ultimately inevitable. New relations between yourselves and the outer world must occur. I would therefore urge upon you that you appoint a com- mittee to prepare a code of laws suitable for the present and future requirements of this community. The judges are constituted your legal advisers in these matters-to them I refer you.' If this was true in 1860, how much more is it true to-day ? The constantly increasing travel over the great Overland Mail route, the thousands of emigrants passing yearly through your Territory, many of whom become permanent citizens, admonish all of us that your days of isolation from the outside world have forever passed. Even if it were desirable, you can- not longer remain isolated and walled in by these natural ramparts around you. Every canyon susceptible of improvement will be converted into some thorough- fare where the never-ceasing tide of our population will be poured along. Every nook and valley, which for ages have been trodden by wild beasts or savage men, will become the home of some enterprising citizen whose right it will be to claim the protection of just and wholesome laws.

" FINANCIAL.

"I herewith annex the auditor's and treasurer's reports for the year 1862. They have been made out with so much clearness in their details that it is only necessary for me to refer them to you, accompanying the former with a few brief suggestions. By reference to appended statement "A" in the auditor's report, it will be seen that the aggregate amount of taxable property assessed within the said Territory for the year 1862 is $4,779,518; and the same statement shows a tax due the Territorial treasury for the current year, estimated at one per cent., of $47,795.18, from which will have to be taken, for cost of assessing, collecting and remittances by county courts, at least 12 per cent .; leaving a probable net revenue of $42,059.76.

" The whole Territorial liability, including the direct tax assessed by the

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United States, and assumed by the Territorial Legislature, January 17, 1862, amounts to the aggregate sum of $40,199.31. The assets out of which this sum is to be paid, by reference to the same report, amounts to the sum of $50,612.10, leaving a balance still in the treasury on the Ist day of November, 1862, of $10,412.99. The above result cannot fail in being satisfactory to you. The report of the treasurer is so clear and concise that it is not necessary for me to add one word more than what is contained in the report itself.

" Before dismissing the subject I call your attention especially to the auditor's report for the year 1861, in regard to the aggregate value of taxable property within this Territory for that year. By examining the same you will find that such aggregate amount was $5,032,184-thereby showing the strange fact that since that assessment was made there has been a falling off in the value of taxable property within this Territory in a single year of $252,666, and what is still more remarkable, this apparent loss in Great Salt Lake County alone has been $140,280, whilst, on the other hand, in the County of Davis, there has been an apparent gain of $410,514. I am advised that the cutting off a portion of this Territory, and adding the same to that of Nevada, cannot account for this phe- nomenon.

" If there is no mistake in these computations it presents a most remarkable fact indeed. I shall not attempt to account for it here, but call your attention to the same, merely adding that in the absence of great local calamities, which affect in their nature whole communities, I question whether such an instance can be found in the history of any people. But it remains with you to account for this phenomenon. This city is the heart and centre of the county where so remark- able a deficiency has developed itself, and yet there certainly has been no natural causes for this condition of things. Not only have the people stood still in all of their industrial pursuits, absolutely earning nothing over and above their current expenses that goes to swell the aggregate wealth, but there has been a positive loss, if we are to be governed by these data, in Great Salt Lake County alone, in one year, of $140,280. Can this be so, when we take into considera- tio that the present year has been one of unusual prosperity, while the labors of the husbandman have been most bountifully paid, and on every hand of this thriving city unmistakable evidences of prosperity are apparent ? This result can only be accounted for on one hypothesis, viz: in former years the valuation of property has been too high, or the present year it has been too low. These fluctu- ations to some extent will always exist from factitious causes alone, in spite of the greatest precaution ; but it is the duty of the Legislature to guard not only the people but the treasury, against abuses of the kind, if any exist. There can be no wrong to the people in the collection of an ad valorem tax, providing the property has been fairly assessed and its value fairly determined. The revenue is the common fund of the people, and there should be no favoritism in the collec- tion of the same. No matter whether the individual property-holder possesses ten, twenty or a hundred thousand dollars' worth, he should submit to the same rules in determining its value, as if he was the owner only of one hundred or ten hundred dollars' worth.

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" MISCELLANEOUS.

" On the 29th of October last the Secretary of the Interior addressed me a letter informing me that he had designated me to receive for the Territorial Li- brary here, two sets of the documents of the 2d session of the 36th Congress; that by the Act approved the 14th March, 1862, making appropriations for the Legislative, Executive and Judicial expenses for the Government for the year ending 30th June, 1862, there is the following provision: 'Provided, that the said journals and documents shall be sent to such libraries and public institutions only as shall signify a willingness to pay the cost of transportation of the same.' Upon inquiry I find that no funds were at my disposal with which to pay for such transportation, and I notified the Department accordingly.

" There will doubtless be other important documents to be distributed on the same terms hereafter, and I recommend that you provide the necessary means whereby you can avail the people of this Territory of the benefits of these donations.

" I am advised that the penitentiary of this Territory is in a dilapidated condition, and that some repairs are absolutely necessary in order to make the same a safe or proper receptacle for public offenders. I recommend that you me- morialize Congress upon that subject.

" I have not been able to find any law upon your statutes inaugurating a common school system, or that any money has been appropriated with a view to that end, although you have appropriated money to other objects of much less importance, for instance, in keeping up a quasi military establishment at a con- siderable expense to the people. As much as this condition of things at one period of your history may have been required, it seems to me that the time has passed when the Territorial fund should be used for that purpose at the expense of so important a measure as that which looks to the education of the rising genera- tion amongst you. I need not dwell here upon the importance of common schools ; your intelligence must supply any argumentation on my part.

" The condition of the militia of this Territory is unknown to me. Although the statute organizing the same makes it the duty of the lieutenant-general com- manding to report to the Governor, who is recognized as commander-in-chief, on or before the Ist day of December, annually ; yet no such report has been made to me, and therefore I am wholly uninformed on the subject. If I shall hereafter deem it my duty, I may require that such report be made.

" There are many other topics to which, perhaps, I ought to refer, but I have no data from which to draw conclusions. If reports on any of these subjects shall hereafter be made to me I will communicate them to you, with such suggestions as I shall deem proper.

"INDIAN TROUBLES.

" Complaints have been frequently made to me during the past summer and up to a recent period by immigrants who have suffered great loss and violence from hostile Indian bands who infest some parts of this and adjoining Territories, whilst peacefully pursuing their travel to such points of destination as was their right to do; and from statement; which I believe to be reliable, certain residents of this

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History of Salt Lake City, Part 39

Author: Tullidge, Edward Wheelock Publication date: 1886 Publisher: Salt Lake City, Star printing company Number of Pages: 1194

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194