they were not. A radical reformation of ideas, habits, especially of religious opinions, always incurs the friction of disagreement; yet, if armed with right and justice, it will roll on irresistibly to its fulfillment. This is the normal law of reformation or revolution both in church and state. Concurrently the laws should be inflexibly enforced. No step backward should be tolerated.

On the other hand the Mormons, qualified under the law to vote and hold office, complain that the Commission, from the first, has uniformly excluded them from appointment as registrars wherever qualified nonMormons could be found willing to accept. And they complain that in that way, contrary to the letter and intent of the law, and to a policy promotive of reform, they have been discriminatively and invidiously proscribed for no other cause than their religious opinion.*

Finally, the local discussion of particular laws is resolving itself into an abstract discussion of the respective limits of the civil and ecclesiastic authority of the immunity of opinion and the responsibility of acts. The discussion, taking this form, involves an old question, which, debated for generations by speech, by the pen and the sword, issued in a conclusion more theoretic than consistently practical. The conclusion, generally stated, is that the legislature, within its organic competency, is the primary judge of what concerns the temporal welfare of the individual, of society, and the state, and that its judgment in that respect, within its organic competency, is exclusive and determinate.

On the other hand, the conclusion is that opinion, or belief, whether religious or secular, is a natural and inalienable right, sacred against legislative coercion or intrusion. It is in virtue of this recognized distinction that the laws enacted by Congress, penally prohibiting sexual offenses, have been upheld by the Supreme Court of the United States,† and that the laws, either temporal or spiritual, punitive or coercive of opinion, have been adjudged void. This is the distinction of reason and right-the distinction crystallized and made salient in our constitution of government, and cherished as the apple of the eye by the American masses.

Jefferson said "that the opinions and belief of men depend not on their will, but follow voluntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested His supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishment or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy Author of our religion;" that our civil rights have no dependence on our religious opinions any more than on our opinions in physics or geometry; "that the opinions of men are not the object of civil government."

Madison sententiously said: "Religion, or the duty we owe to the Creator, is not within the province of civil government."

Hamilton said: "If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the voters to a small number of partisans and establish an aristocracy or oligarchy. If it may punish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, or know when he may be the innocent victim of a prevailing *See Appendix, Note E.

Murphy v. Rainsey, 114 U. S., 15, 44.

passion. The name of liberty applied to such a government would be a mockery of common sense."

Five States, while adopting the Federal Constitution, proposed amendments. Three-New Hampshire, New York, and Virginia-included, in one form or another, a declaration of religious freedom in the changes they desired, as did also North Carolina, whose convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Hence, answering these and other expressions of States, statesmen, and the people, the Constitution in its original text, and in its amendments, was adopted, the object of its adoption being, as declared in its preamble, to "secure the blessings of liberty to ourselves and posterity." As vital to that end, the original Constitution provides that "no religious test shall ever be required as a qualification to any office or public trust under the United States;" and Article I of the amendments declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press."

The Supreme Court in expounding and applying certain of these provisions, in its opinion delivered by Chief Justice Waite, makes plain the distinction between opinion as a mental act and the outbreak of opinion as a physical act, injurious to society and prohibited by law. The court says:

*

Laws are made for the government of actions, and while they can not interfere with mere religious belief, they may with practices. Congress can not pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guarantied everywhere throughout the United States so far as Congressional interference is concerned.*

The Edmunds act of 1882, in unison with this judicial exposition, declares that the Utah Commission "shall not exclude any person otherwise eligible to vote from the polls" or "refuse to count any such vote on account of the opinion of the person casting it on the subject of polygamy or bigamy." (Sec. 9.)

In conformity with these canons, thus variously propounded, the Commission has from time to time officially assured the Mormon people domiciled in Utah that the Government of the United States had no no design to coerce them for their church membership, or their relig ious opinions, and that all that was required or could be rightfully required of them was to obey the laws.

In the Commission's first annual report, 1882, it said:

The legislation of Congress as we understand it is not enacted against the religion of any portion of the people of this Territory. The law under which we are acting is directed against the crime of polygamy.

In its report of 1883 it said that

By abstaining from the polygamic relation they [the Mormons] will enjoy all the political rights of American citizens.

In its report of 1886 it said:

We recognize the obligation of the Government of the United States to protect the personal and property rights of the Mormon people, and to deal with them as equals before the law, yet it is equally the duty of the Government to punish crime.

Again, in its circular of March, 1887, to election officers, it said, after enumerating all the disqualifications of voters

That no opinion which they (the Mormons) may entertain upon questions of religion or church polity should be the subject of inquiry or exclusion from the polls.

*Reynolds vs. U. S., 98 U. S., 162–3.

But this limitation, while shielding the elector, does not necessarily include the juror, the nature of whose functions imperatively requires of him judicial impartiality. Hence the law of 1882 wisely and conservatively provides that any one offered as a juror in a prosecution for bigamy, polygamy, or unlawful cohabitation under a statute of the United States, who believes the acts constituting these offenses right, shall, for such cause, upon challenge, be rejected.

With this record of historic names and wisdom and of the organic and municipal law of the land outstretched before us, what addition to it, if any, does experience now admonish?

Answering this question, I would respectfully recommend an amendment to the Federal Constitution perpetually prohibiting polygamy under whatsoever its guise, not only in the States, but also in the Territories and other places over which the United States have or may have exclusive jurisdiction.

The importance of such an amendment can not be overestimated. I would draw 'under a common and uniform civil cognizance the conditions of marriage and divorce, with the evidence and the authentication of the evidence of their verity, and thus subserve convenience and certainty in respect of the paramount feature of social life. Moreover, it would draw under the same cognizance the question of monogamy and polygamy, upon the dual terms of which in the one case turns the capacities of individual, social, and national development, and, in the other, turns the deadening and corrupting influence of the patriarchal principle and stationary despotism.

It would substitute a lasting organic law for a fugitive legislative enactment, which must cease to operate with the cessation of the anomalous Territorial condition.

It would raise an inferred and parasitic power, obscurely deduced from another power, administrative in its terms, and pointing directly to the disposal of property, to the dignity and distinctness of an expressed power.

It would inure as a solemn, deliberate, and final repudiation in this country of the Asiatic and African pestilence, polygamy.

It would be an authoritative and conclusive notification to immigrants from every land that the United States are dedicated to the virtues and blessings of monogamy, and, not least, the amendment, passing as a lesson into the common and higher schools of the land, would form and train the minds of generations in accord with its spirit and reason.

The material prosperity of a community generally depends upon the tillage of the soil. It was the commandment of the Creator to man that he should go forth and till the soil and live by the sweat of his face. Hence, whatever concerns the fulfillment and fruition of that commandment is of the first importance.

This premised, the question arises, what disposition of the public lands in Utah would best subserve the purposes and interests of that law?

To answer this question intelligently and usefully, it is requisite to advert to the extent of the Territory, to its natural features, to its climate and mineral resources.

Its length, north and south, is 325 miles. Its breadth, east and west, is 300 miles. It lies between the 37th and 42d parallels, north, and the 109th and 114th meridian west, Greenwich.

The climate is rarely rigorous, and generally exhilarating and salubrious. This is witnessed by the noticeable physical development of the whites.

The out put of certain mines for the calendar year 1887 was:

Of gold
Of silver..

Total

$220,000 7, 000, 000

7,220,000

Of the copper and coal products, I am only prepared to say generally that they were considerable and are increasing.

Commonly the presage of rain is delusive and the rain-fall deficient. On the whole, the region is naturally dry and arid. The snow-fall is the chief reliance for water, fertilization, and sustenance of vegetation. Artificial irrigation has been availed of, but, for lack of capital with the farmers, only in a desultory and imperfect manner. This fact, opening a field for speculation in lands and water rents, is engaging the attention of moneyed corporations and syndicates, but with a dubious prospect of ultimate advantage to settlers, The urgent need is a comprehensive and scientific plan of irrigation. There should be no waste of water. As far as may be found advantageously practicable, waters of the rivers, lakes, cañons, and other mountain torrents should be made tributary to capacious and durable reservoirs for regulated distribution for all needful purposes.

Such a scheme appeals to the favor of Congress for economic and other reasons. As an efficient and suitable means of accomplishing it, I would respectfully suggest the cession of the unappropriated and unreserved lands of the United States in Utah for that purpose, under a compact concurrent with the eventual admission of the Territory as a State, and guarantying the application of the proceeds of the sales of the lands, or a reasonable annual tax thereon, to insure its faithful execution. I would further suggest the extension of such a scheme to the other arid Territories and the new States of the West, placing all the communities of the aid region upon the same level of advantage.

Under the operation of such a scheme the area of profitable production would be greatly increased. Comparably it would be greater than the arable area of the six New England States, and capable of sustain. ing a more numeroas population. The effect in relation to the Mormon imbroglio would not be uncertain. Taking form in an influx of immigrants of predominating numbers and influence from the old States, the end of polygamy where it exists in the incipient States and the Territories would be irresistibly hastened and assured. In fact, the shortest way to the end of that evil lies in such a scheme.

The advantage of irrigation has been conclusively demonstrated. Rainless Egypt affords a striking and apposite example. With a narrow strip of land actually cultivated, containing less than 5,000,000 acres bisected by the Nile and irrigated by its annual overflow, she even now, in her decay and despair, finds a resource capable of sustaining its 4,000,000 occupants and of supplying an annual tribute in taxes

amounting to millions to her foreign creditors, showing that the propor tion of land in acres to the population is as one acre and a fraction of an acre to each occupant. The fact seems incredible, yet it is well attested.

That resource affords the key to the conspicuous part played by Egypt in the ages of her power and prestige; to her armed conquests; to her lavish expenditures, evidenced by her colossal pyramids; to her convergence of the ancient lines of commerce upon Thebes and Cairo, upon Bagdad and Alexandria; to her antique yet mystic lore, which, borrowed and purged by the versatile Greeks of its sinister expression, became successively the beacon-light of the letters and literature of the pagan and Christian world.

The law creating the Commission, providing, as we have seen, for the representation of different political parties in its composition, plainly intended that it should be administered with judicial fairness and impartiality-in a non-partisan spirit. Dealing with the elective fran chise and eligibility to office, elemental to republican government, it could hardly have been otherwise. Guided by the law and its intent, I have abstained from wresting either, while I have faithfully endeavored to give due effect to both.

I have already said that the existing laws are working well, and have cited accumulated proofs of the fact. To "let well enough alone" is a wise and safe rule. I would therefore recommend general adherence to it. Further aggressive legislation trenching further upon civil and political privileges would be injurious rather than beneficial. It would be regarded by the people affected as revolutionary and despotic. Savoring, under the circumstances, of persecution for religious opinion, it would provoke resentful feelings, an obstinate and reactionary mood. Such has been the effect of such legislation in all like cases. No religion was ever finally destroyed by e ther armed or unarmed proscription. "The blood of the martyr is the seed of the church."

The Mormon religion purged of its impurities will probably survive, how long no one can foresee. Its votaries, impelled by the zeal characteristic of a new sect, are active propagandists. Its vices, however, like those distorting any other system, must be amenable to the corrective laws of progress and intelligence. Civilization is a sublime revelation, modifying, improving, and elevating the yearnings of the human heart and mind. The ages of that fanaticism and fatuity which contrived the inquisition and the rack; which invented the medieval writ de heretico comubrendo; which burned Latimer and Ridley at the stake; which inflicted the massacre of St. Bartholomew; which ruthlessly exterminated dissenters from orthodoxy in the Netherlands, and which drove the Puritans, the Huguenots, the Quakers, and their co-devotees to the cause of freedom in their native lands to find refuge in the New World, and to people it with teeming millions, and to bless it with republican principles and forms-those ages have passed away. To revive their dark and intolerant spirit now, in the nineteenth century, would add another proof and lament that the course of nations is not upon straight lines, but in wayward circles, ending where they began and rebeginning where they ended. The commentary of the philosophical historian would not be doubted. Passing the dismal panorama of reaction before him, he would not spare just censure upon whomsoever or whatsoever it should fall.

Hon. JOHN W. NOBLE,

JOHN A. MCCLERNAND.

Secretary of the Interior, Washington, D. O.

INT 89-VOL III-14