THE CASES AGAINST THE COMMISSIONERS
                                             ___________________________

                                   ARGUMENTS IN THE SUPREME COURT OF THE
                                                          UNITED STATES.

The five cases against the Utah Commission appealed from the Supreme Court of the Territory, came up for argument before the Supreme Court of the United States on Wednesday, Jan. 28^th. Eight judges were on the bench, who listened with close attention to the speakers and the brief that had been prepared and printed.

The cases are of Mary Ann M. Pratt, Ellen C. Clawson and husband, James M. Barlow, Mildred E. Randall and husband, and Jesse J. Murphy against Alexander Ramsey, A.S. Paddock, G. L. Godfrey, A. B. Carlton, J.R. Pettigrew, E.D. Hoge, and the several deputy registrars of the precincts where the appellants resided at the time of the election of 1882. Each case has its own peculiarities, but all charge that the appellees willfully and maliciously struck and kept from the registration lists the names of the appellants, who were lawfully entitled to vote, neither of them having violated the Edmunds law, and the ladies not being either of them a bigamist or polygamist within the meaning of the statute. The complaint charges too that the test oath prescribed by the Commissioners is unauthorized by law; that the Commissioners have usurped legislative powers in its prescription; that the oath gives an ex post facto interpretation to a penal act; that the Commissioners have no other duty to perform than simply to appoint the registration and election officers, and count the returns for members of the Legislature and issue certificates of their election.

Going back to the law itself it is claimed that the Edmunds Act is unconstitutional, in that it is a bill of attainder and ex post facto in its effects. The summary withdrawal of the elective franchise, for which it provides, is punishment, and that is inflicted without due process of law, Congress cannot hold the Territories as provinces and disregard the fundamental principle of our institutions, local self-government; and the ninth section of the Edmunds Act substitutes the will of five Commissioners for the will of the people. This in brief, is the marrow of the complaint.

Senator Vest of Missouri, opened the argument. He looks like a larger edition of H.B. Clawson and speaks with warmth and force. He presented the facts in the case of Mrs. Pratt, showing that she had violated no law and that her husband, the late Professor Orson Pratt, died before the passage of the Edmunds law. She was denied the privilege of voting. the Commissioners sitting without authority of law as a judicial body to determine her case. He spoke of the Commission as a most extraordinary body, something without precedent in the country. But their assumption of judicial and legislative functions was without excuse or color of legality. He read the eighth section of the Edmunds Act, which alone creates and defines their powers, and in showing that they have no such authority as they have assumed he referred to the debate on the passage of the law, when, in answer to the opponents of the measure that they feared the exercise of just such powers, Senator Edmunds himself replied:” As to the qualifications of electors, this Board of five persons are not by this bill vested with any powers at all; they are left exactly where they are left by the other laws of the United States.”

Mr. Vest showed that they were to act under the existing laws of Congress and of the Territory of Utah, but they had ignored the latter and made rules and added to the law to suit their own interpretation of their powers under the Edmunds Act. He cited the case of Mayor William Jennings and the application of W.C.A. Bryan of Nephi for the settlement of a question as to the qualification of voters, and showed how the Commissioners had sat as a Court, disfranchised Mr. Jennings unlawfully, and issued rules in answer to Mr. Bryan, thus exercising both judicial and legislative powers. He denounced their course in strong language and warmed up to his work in vigorous style.

Senator Vest, going to the law itself, argued as to its unconstitutionality; cited the Cummings case to show that no one can be deprived of the right to hold office by a legislative enactment, that punishment can only be legally inflicted by due process of law, which means a judicial trial. The whole Edmunds Act, he said, is a “crimes act.” Section eight must be construed, in company with Sections One and Two; each of them is punitive, and Section Eight is a bill of pains and penalties and is ex post facto.

The Senator occupied an hour and a quarter, which was fifteen minutes more than his allotted time, and closed abruptly when he learned that fact. It was an able effort and gained the absorbing interest of the Court. Senator Edmunds was present during a portion of the speech and conferred with Justice Gray.

Solicitor General Phillips, a large and ponderous man, argued in behalf of the Commissioners. It was one of the lamest things imaginable, coming from such a source, and was marred by the indistinct manner of speech which marked the greater part of it. He took the position that in the Pratt and Barlow cases there was a ground of action, but in the other three, none; it was not shown that they had been injured. Also it had not been claimed that the parties or either of them, had been compelled to take the oath prescribed. He stated (incorrectly) that the Commissioners were placed by the law in the positions formerly occupied by the registration and election officers. Argued that the Assessor, acting as the registration officer, was required to administer an oath, the “substance” of which was prescribed by the Utah law of 1878, but if the Utah law had changed in 1882, he would have been required to change the oath to conform to the law. Congress had the right to pass laws as it pleased for the Territories, and had enacted the Edmunds law, which prescribed a new qualification for voters, and this was properly included in the new oath which the Commissioners, as the registration officer, required voters to take. He then actually admitted that the Commissioners had no right to enact a new oath, and yet argued that Congress had made it their duty to see that no bigamist, polygamist, etc., voted and thus required of them to do what they had done.

He next argued that any person who at any time had been guilty of polygamy and did not by his oath show that this relation had been discontinued, was properly disfranched by the Edmunds Act. He maintained that bigamy or polygamy was a state or condition against which Congress sought to legislate, as well as against it as a personal offence. It has a political as well as a criminal aspect. He he warmed up into a reply to Senator Vest’s argument that the Edmunds law is only a “crimes act,” and showed that Congress not only legislated against polygamy by way of punishment but as a condition which was against the order of the State and therefore part of the law was criminal and part political. He did not put it as clearly as this, but that was the tenor of his remarks and he proceeded to make the usual anti-“Mormon” general attack on the system of polygamy as it is supposed to affect the nation. He called it the moral dynamite that would disturb the country if let alone.

Touching on the powers of Congress over the Territories, he referred to the time when Missouri, before it was a State, was governed by certain officers of Indiana, appointed for the purpose. Congress could do for Utah anything that a State could do for its own citizens.

Coming back to the cases before the Court he urged that a woman must share the disadvantages as well as advantages of her husbands’ status. An alien woman became a citizen by marriage to a citizen. So a woman whose husband entered polygamy became disfranchised by his disabilities. After a few general remarks in an instinct tone and hesitating manner, he berated Senator Vest for the style of his speech which he suggested had no influence “in this part of the Capitol,” and then took his seat.

Ex-Attorney General MacVeagh then addressed the court. He is a small, nervy, intellectual looking man, with thin face, head partly bald, voice clear and piercing, tones distinct and ringing and enunciation syllabic and distinct, He was quite at home with the Court, yet very respectful, and talked in a convincing way. He demolished the Solicitor-General’s attempt to show that three of the cases had no cause, and proved that if the other two, as admitted, were valid, all were for similar causes. He then took up the question of the powers of Congress and, though a Republican, advocated pretty thorough Democratic doctrine. He laid down the principle that whatever might be claimed for Congress under the clause in the Constitution about “needful rules and regulations respecting the Territory and other property of the United States,” while the Legislature exists under the Organic Act, Congress had no co-ordinate power to prescribe the qualifications of voters

Here an animated colloquy ensued, several members of the Court asking questions, to which Mr. Mac Veagh replied clearly and good humoredly, maintaining his position intact. Answering Mr. Phillips’ argument about what Congress had done in certain early cases, he showed that it was done outside of the Constitution, as admitted by the promoters of the movements themselves. Now, Congress was bound by the Constitution, Local self-government was an essential principle of our institutions and the best form. It was wondrous strange that out of that one clause in the Constitution about “needful rules,” Congress should have drawn that imperial power it had exercised. He maintained that whatever authority might thus have been claimed, Congress could not constitute election officers bodies to inquire into crime and prevent those from voting whom they consider guilty. If the law provided that one guilty of larceny should not vote, they could not determine his guilt or innocence. Before any man is adjudged guilty, he must be tried, and before he can be prevented from voting, he must first have been judicially put into the class which is by law debarred from voting. A test oath is not due process of law, but a bill of pains and penalties.

At 4 o’clock the Court adjourned till noon of the 29th, it being understood that Mr. MacVeagh was to have further time to continue his argument, although one hour each was the stipulation. Hon. F.S. Richards was present as one of the counsel for the appellants. This is most valuable to their cause. Although he is not to speak on this occasion, giving way to Mr. MacVeagh, he is alert to present points and suggestions and urge arguments affecting these important questions such as are essential for Utah’s welfare. The comprehensiveness and compactness of the printed brief are largely due to his thorough knowledge of the situation and the laws and authorities bearing upon the matter. He has been indefatigable, and though his work does not shine on the surface in an oratorical presentment of the cases, it has been the moving force beneath which has inspired the close arguments and pertinent reasonings of the speaking counsel for the appellants.

On Thursday Mr. MacVeagh resumed his argument. He commenced by showing further that each case before the Court was similar, in respect to having his or her name stricken from the registration list, each having applied for registration and been denied. In Mrs. Clawson’s case a wife was denied a political right because an election officer decided that her husband was a polygamist! This was a peculiar case. The gentleman then addressed himself to the proposition that no person could be deprived of the suffrage without due process of law. He showed conclusively that when once enjoyed, the elective franchise was property, and that too of inestimable value. He cited the Court’s own language in Minor vs. Happersett (21 Wall, 176) that “The right of suffrage when granted will be protected. He who has it can only be deprived of it by due process of law.” In answer to questions from Judges Matthews and Harlan, he admitted that Legislatures might change as well as prescribe the qualifications of voters, but not take away the right to vote when it was once conferred, for it then becomes property.

Justice Matthews here interposed the objection that it does not appear from the complaints that either of the parties was a legal voter; It does not affirm “I am not a bigamist or polygamist.” Mr. MacVeagh replied to the effect that the complaints covered every point required to show that the parties were not debarred by the law from voting. It was not affirmed “I am neither a bigamist nor polygamist,” because the definition of those terms was open to dispute. The Commissioners took the ground that a person who at any time was a polygamist remained so for all time, even though he became a widower. The gentleman declared that he could not draft a complaint that covered the ground more completely than these complaints that had come from Utah.

Coming back to his main argument, he showed that “due process of law” means adjudication by a judicial tribunal authorized to determine the question. No election officer could sit in judgment upon any one’s right to vote. This attempt against the liberties of citizens would not stop here. If this Court sanctioned it, the consequences would be widespread. Suppose in Maine, where liquor-selling was interdicted by law, it should be enacted that no one who violated that law should vote, and election officers decided that a man was a liquor-seller and so disfranchised him, would the Court sustain such proceedings? Yet the principle was the same as that applied now in Utah. He asked what was the value of real property compared to that of property in the elective franchise? He claimed that the Edmunds law does not prescribe a qualification for voters, but is designed to punish offences and the deprivation of their voting power was part of the punishment but was inflicted without due process of law.

He made an affecting appeal in behalf of Mrs. Clawson, the lawful wife of a reputed polygamist, who was punished for the alleged act of her husband to whom she clung as a matter of choice and right, and asked what the Court would think of a man’s being deprived by a mere election officer of the franchise for some wrong done by his wife. He concluded with a powerful appeal to the court to sustain the sacred principles of human liberty, and guard the rights of American citizens of every class and degree.

Mr. MacVeagh was highly complimented for his eloquent and logical plea. The Solicitor General gazed up to the ceiling as though wrapped in reflection over the strong points presented. The Court took the matter under advisement, and for the present the excitement ended. If a decision is not rendered in favor of the appellants, it will be either because the Court cannot discern the merits of as clear a case as was ever presented, or because anti-“Mormon” prejudice and bias have reached even the court of last resort, and the people of Utah need expect no justice in “the land of the free and the home of the brave”.                                 EXILE

 [Transcribed by Heather Hoyt, Mauri Pratt and Tiffany Woods Whiting; May 2012]

“The Case Against the Commissioners”, Unknown newspaper, 18 February 1885.

Return to Histories of Mary Ann Pratt