absolutely. It not only prohibits it, but makes a compact that that provision shall not be changed.

HOW AND BY WHOM THE CONSTITUTION WAS MADE.

We are driven by the charge of insincerity that is made here, and to which I have alluded, and by the range of this discussion, to inquire by whom was this constitution framed? and into the incidents and conditions that led to its making; because the good faith of its framers is arraigned before you.

The Mormon people who have never been in polygamous relation, who could take and did take the most searching and stringent oath to that effect, weary of contention, desiring to promote the welfare of all the people of that Territory, and desiring to place themselves in harmony of conduct with the people of this nation, as to this apple of discord, proposed a convention to frame a constitution for State government. (The fewMormons who are in polygamy had nothing to do with it.) They invted their non-Mormon or Gentile neighbors to unite with them, and although largely in the majority, offered the minority representation in that convention. This invitation and this offer were rejected.

They then went forward with this work. The men who composed that convention were representative men and represented a people such as I have described. They were intelligent and wise men, as is attested by the fact that they have made a constitution against which the shafts of criticism have never been leveled and with the exception that Mr. Baskin has started a point I will presently allude to, and that Colonel Ferry said it made polygamy a misdeamor instead of a felony, there is no word or phrase in it to which, so far as I know or can see, exception can be taken. I say that it is up to the highest standard of fundamental law for the government of a free people.

In it, for the purpose of setting forever at rest this question that has for so long disturbed the harmony of the people, they inserted these two provisions:

ART. XV.-SEC. 12. Bigamy and polygamy being considered incompatible with "a republican form of government," each of them is hereby forbidden and declared a misdemeanor.

Any person who shall violate this section shall, on conviction thereof, be punished by a fine of not more than $1,000 and imprisonment for a term not less than six months nor more than three years, in the discretion of the court. This section shall be construed as operative without the aid of legislation, and the offenses prohibited by this section shall not be barred by any statute of limitation within three years after the commission of the offense; nor shall the power of pardon extend thereto until such pardon shall be approved by the President of the United States.

Provided, That section 12 of Article XV shall not be amended, revised, or in any way changed until any amendment, revision, or change, as proposed therein shall, in addition to the requirements of the provisions of this article, be reported to the Congress of the United States, and shall be by Congress approved and ratified, and such approval and ratification be proclaimed by the President of the United States, and if not so ratified and proclaimed, said section shall remain perpetual

If that becomes the organic law of Utah, and continues as such, polygamy is ended, and I think everybody will agree to that, notwithstanding the argument made by Judge Baskin, which I will briefly notice.

Mr. STRUBLE. One moment. Do you discuss the meaning of the word misdemeanor, as defined in this relation as a crime in your further remarks?

Judge WILSON. I have it in mind to say this. Colonel Ferry made the point. I remember that he said that in this constitution they had

defined it as a misdemeanor and not a felony as they do in Michigan. I believe I quote him correctly. Very well, I can point you to a hundred instances where you gentlemen as members of Congress and your predecessors have enacted laws defining crimes and have called those where they attach very high penalties misdemeanors. I argue that if it does call them misdemeanors it does not make much difference to a man in its consequences whether you call a thing a felony or misdemeanor. If you shut him up in a penitentiary for about three years and fine him about a thousand dollars, I do not think he would get much consolation out of the fact that you called it a misdemeanor instead of a felony. Mr. STRUBLE. In our State I think misdemeanors are not subject to a fine of more than $100 and imprisonment for more than thirty days. Mr. MANSUR. You say where there is punishment in the penitentiary that was a felony.

Mr. WILSON. Yes, sir; practically that. This whole subject has been gone over before, and, to use the language of Judge Cartter,

The walls of the penitentiary draw the line between the offenses that are infamous and non-infamous.

The Supreme Court has said, in effect, whenever you imprison a man and inflict upon him such punishment as to put him in the penitentiary, then the infamy is attached to it, and you can not prosecute it in any way except by indictment.

Mr. WARNER. It comes to the question of whether you can prosecute on information?

Mr. WILSON. Yes, sir. That question arose in the star-route case when they undertook to prosecute on information.

Mr. SYMES. Permit me a question. Has it been held or not that that word "felony," or "misdemeanor," involves the same defense as if it was an offense which was infamous or non-infamous? There has been a great deal of talk about it, and I am not familiar as to whether it has been held or not.

Mr. WILSON. It does not turn exactly on that. If it is infamous, the proceeding must be by indictment, and if the punishment is in the penitentiary, it is infamous.

Mr. SYMFS. I have not heard it stated, and do not know the decision in regard to that.

Mr. RICHARDS. Under the present act of Congress polygamy is not declared to be a felony.

Mr. WILSON. It has been given to Mr. Baskin to find a spook hiding behind this word "polygamy " as used in this provision of this constitution. He gets a glimpse of it in his mind's eye, and every hair on his head stands on end. He hurries over to England for a decision made in a court over there, and with that proceeds to make a refined argument, splitting hairs "twixt the north and northwest side," to prove that "prohibition does not prohibit;" that although this constitution forbids polygamy and makes it a misdemeanor, yet under this provision, and notwithstanding this provision, polygamy may be practised with impunity.

Now, gentlemen, the word "polygamy " has a settled and legal sig nification. It means in this constitution and must always be held to mean just what that word signifies, not only to the legal mind, but to the mind of the layman.

But he has another phantom lurking behind this word, and that is that the Utah courts will concoct some subtle occult system of logic by which the plain meaning will be defeated.

That objection, I submit, rests in his belief, his opinion, his ability to forecast future events. Such a thing as these courts resorting to such methods has never happened in the past-there is nothing to indicate that it will happen in the future. As Mr. Baskin don't believe in revelation, I know he will not expect you to accept it as a fact that it has been revealed to him what these courts will do; and as he is not a prophet and does not pretend to be, all he can do is to argue what the courts might do. But I must say it with the most profound respect for Mr. Baskin, for it is well known that he is an able lawyer, and his legal ingenuity has been demonstrated here, that if any court should reach such a conclusion upon the argument he has presented here, it would deserve to be impeached (for incapacity, or worse, and would be impeached and condemned by the universal judgment of the world.

This point made by Mr. Baskin is not one that rests in argument. It rests in an assertion that you can not repose faith in these courts; and it rests there alone. It is only an appeal to you to distrust them to the degree of condemning them as utterly unworthy of confidence.

But recurring now to this constitution, I say, and you will all agree with me, that it is beyond criticism, and it makes no difference for the purposes of this argument who took part in making it and who did not, nor how long or how short the notice of its making was; as an instrument it is above criticism, and if Judges Baskin and McBride and Governor West had made it themselves they could have done no better, and they do not now suggest any infirmity other than I have mentioned, namely, that its framers are insincere.

Judge McBride said, and I quote his exact language:

I don't care what kind of a constitution they make, I would oppose it. I do not care how perfectly formed it may be.

But when you take this constitution with this provision embodied in it, in connection with the other matters I have enumerated, I say they utterly and irresistibly repel this charge of insincerity in offering this constitution.

Now where is the evidence of insincerity? I challenge any one to point to an indication of it. It can not be found in any legislative enactment, for these have been just the other way. It can not be found in their marital relations, for they have never entered polygamy. It can not be found in any refusal to take a prescribed test oath, for they have been weighed in that balance and not found wanting. It can not be found in their church creed as we have already seen. It is simply an assertion without enough foundation in any fact sufficient to create a suspicion.

This brings us to the next objection in this regard that I wish to notice. You will observe that polygamy is not merely prohibited by this constitution, but is made a misdemeanor, and the punishment is prescribed and no act of the legislature is required to execute it. Nor can any governor pardon any one convicted of such an offense. Nor can this self-executing provision of the constitution be changed without the approval of Congress. It is to be perpetual unless Congress agrees to the contrary.

It is impossible for the skill of man to more completely hedge this matter of polygamy in and place it under an enternal ban of the law than is done by these constitutional provisions.

But the answer that is made to this is simply, "Oh, when they get into the condition of statehood they become independent of Congress, and they may amend this constitution by striking out these provisions and Congress will be powerless to prevent it."

CONGRESS CAN REQUIRE A SPECIAL COMPACT.

Now, gentlemen, it is a question of supreme importance, whether by admitting a State you place it out of your power to control this subject. It is contended that such would be the result. I deny the proposition. Over and over again States have stipulated that they would not exercise the sovereign power of taxation. That is a power that inheres in State sovereignty, but they have been required to yield it up, and no one ever doubted that such a stipulation was a proper stipulation to be entered into.

In the case of Louisiana it was stipulated that there should be trial by jury and that the laws should be written in the English language, which possibly may happen when New Mexico is admitted. And nobody ever doubted the propriety or the binding character of that stipulation. Nebraska was required to prohibit slavery. The principle involved in the present case is in no way different from these precedents. The power to tax, as every gentleman of this committee knows, is one of those powers that inhere in every sovereignty. That has been discussed by the Supreme Court in a dozen cases in which it has been held that it was a power that was necessary for the preservation of sovereignty. It inheres in the sovereignty, but in dealing heretofore in respect of admitting States, the States have been required to yield to sovereign power to a limited extent, and no one ever doubted that such a stipulation was a proper stipulation to be entered into, and no one ever doubted that such a stipulation was binding upon the high contracting parties.

Mr. SYMES. Will you allow me a question for the purpose of understanding this? Have not those laws and decisions generally turned upon the question that the taxation in dispute was prohibited by the Constitution of the United States independent of the contract between the States and the Government?

Mr. WILSON. No; I think not.

Mr. SYMES. I just asked the question.

The CHAIRMAN. Do you refer to the distinctive agreement under the taxing laws applying to the case?

Mr. WILSON. For five years.

Mr. SYMES. Or forever.

Mr. WILSON. Or forever; it does not make any difference. But here is a Territory organized into a State possessing this sovereign power, and as to such powers the States is absolutely sovereign; but Congress in admitting that Territory into statehood stipulates that when it becomes a State it will yield up this power of taxation.

Mr. SYMES. I understand that. I do not want to break the thread of your argument.

Mr. WILSON. Now, in the State of Louisiana it was stipulated that she should provide for trial by jury, and it was stipulated that the laws should be written in the English language. Why that stipulation? It was unusual, it was extraordinary. Why was that stipulation put in that constitution or in that contract? It was simply because the people of Louisiana were people of a race different from ours, and it was because they were accustomed to the use of a language different from ours, and a mode of trial different from ours. It was intended to make that State uniform with all the other States in this Union in these respects; and therefore when Congress came to admit Louisiana they said, "You shall provide for trial by jury, which does not exist with you now under your system; you shall have your laws written in the English language;" and that contract was made and no

body ever doubted the propriety of its making or the binding character of that obligation.

Mr. SYMES. Pardon me, as this is a most interesting question, I think. Has there been any decisión arising out of the fact that it was supposed that Louisiana violated that compact?

Mr. WILSON. Not at all, and I will come to that now in a moment. The CHAIRMAN. How much more time will you require?

Mr. WILSON. I should think about half or three-quarters of an hour. Mr. WARNER. I am of the opinion that he could be allowed to go ahead now.

The CHAIRMAN. As the business before the House will probably be an appropriation bill, I think we had better hear the judge out to-day, and I hope we will not interrupt him if we can help it. I will try not to do so myself.

Mr. WILSON. Nebraska was admitted into the Union, and Nebraska was required to enter into a compact that slavery should never exist in that State without the consent of Congress. Nobody has ever doubted the propriety of entering into such a compact nor has anybody ever doubted the binding character of that compact. Congress has never asked for guaranties that the compact would be kept by the State.

There can not be any doubt as to the right to enter into such a com. pact. Congress has been acting upon such a right for more than threefourths of a century, has admitted many States upon compacts precisely similar in principle; it is too late to begin to dispute it now.

But that is not the objection here urged. The question I am now considering is, whether Congress can enforce it if made.

In considering this you will not fail to remember that when communities deal with each other, which is done usually in the form of treaties, they mutually rely upon good faith for the performance of all stipulations between them. They never stipulate for a penalty in case of violation, or provide a remedy in case of a breach of covenant. Reliance is placed upon that high sense of honor that is always attributed and conceded to the contracting parties.

This is a part of what is sometimes called "the public law of the world." And it is upon this idea that when States have been admitted such compacts have been made in almost every case, and the good faith of the people of the State has invariably been accepted that that compact will be kept and performed.

I take it for granted that this will not be disputed; but our friends invariably come back with the assertion that you can not trust these people. But that is an assertion that only goes to the propriety of entering into the compact; and therefore, although somewhat of repetition and aside from the regular line of the discussion of the legal proposition, I come back with the inquiry: What evidence have you in the past conduct of these people to lead you to the conclusion that they can not be trusted to carry out in good faith this compact?

Look into their laws and you can not find it there. You do not find oppressive taxation. You do not find it in mismanagement of public affairs. You do not find any public debt, or any lack of provision for good order any lack of intelligence. You will search in vain for anything in that direction to satisfy you that they are not as high in the scale of honor as any other people. Nor can you find anything in their present condition as to polygamous relations from which you could draw unfavorable conclusions in this regard.

On the contrary, the inferences are all the other way. If you accept the fact to be, as my brothers Baskin and McBride state it, as to what