"The act of the governor and Legislative Assembly of the territory of Utah, entitled, 'An act to punish polygamy and other kindred offenses,' approved Feb. 4, AD 1892, in so far as the same defines and imposes penalties for polygamy, is hereby declared to be in force in the State of Utah."
Mr. Varian was of the opinion that since this territorial enactment invaded the field already occupied by congressional enactment it was void, and that when Utah became a state the territorial law would not be in force in the state, and of course the congressional enactments applicable to the territory would cease to be operative upon the attainment of statehood; hence he thought it necessary to make this constitutional provision against "polygamous or plural marriages." But the part of the territorial law relating to polygamous living or "unlawful cohabitation"—to use the phrase of the law itself—was not made part of the Constitution of this state. And why? Because the demand made by the people of the United States did not reach to that condition. The demand was only: "provided polygamous or plural marriages are forever prohibited." There were other lawyers in the constitutional convention who contested Mr. Varian's opinion, and insisted that this law of the territory would be operative in the state, and therefore there was no need of adopting his amendment; whereupon a protracted and earnest debate took place, in the course of which it was pointed out to Mr. Varian that he had cut this old territorial law in two; he had taken the part that defined and prohibited "polygamy or plural marriages" and made it part of the Constitution, but he had left out the part of the law relating to unlawful cohabitation, and the effect of such action by implication would be to repeal that part of the territorial law defining and punishing unlawful cohabitation. In the course of the argument made on that point in the convention the following took place:
Mr. Evans (Weber)—I would like to ask you [Mr. Varian] a question. The gentleman will agree with me that your [his] amendment will repeal the other kindred offenses in that statute?"
Mr. Varian [answering Mr. Evans]—No; there is nothing to repeal. If you want the other kindred offenses [dealt with], my answer is, prohibit them by law under penalties. * * * *
Mr. Evans (Weber)—I would like to ask one question. Suppose the act of 1892 were valid? (i.e., the territorial law dealing with polygamy and unlawful cohabitation, polygamous living, is referred to)—
Mr. Varian—If the law were valid I should not then introduce—
Mr. Evans (Weber)—Wouldn't it then repeal everything except the polygamy?
Mr. Varian—If the law were valid it might repeal by implication, although repeals by implication are not favored.[1]
Mr. Varian's resolution was adopted and became part of the Constitution, so that in the matter of compact between Utah and the United States on the subject of polygamy [i.e., polygamous marrying] our response went even beyond the demand of the people of the United States as voiced in the Enabling act authorizing us to establish a state government, in that we not only adopted the very language of the enabling act, but accepted the definition of polygamy and provided the punishment, prescribed for that offense by Congress; but no demand was made and no action was taken respecting unlawful cohabitation; nor did it in any manner enter into Utah's compact with the United States.[1]
"In accordance with the general convictions of civilized men and the spirit of free institutions, religious liberty will be fully secured by the organic law and a prohibition against plural or polygamous marriages adopted in deference to the suggestion by Congress. Whether it shall ever be stricken from the Constitution will depend solely upon the future temper and will of the people. It will be observed that the actual polygamous status, or living with two or more women as wives, known in Utah as a criminal offense termed "unlawful cohabitation," is not referred to in the proviso of the Enabling Act. Whether the Constitution builders will content themselves with prohibiting polygamous marriages, or will go further and prescribe the polygamous association also will be developed in time."
And time developed the fact that the Constitutional Convention took no action whatsoever in relation to polygamous living, nor was any attempt made to deal with that phase of the question since the convention conceived that it had done its full duty, all that was required of it, by the Enabling Act, by "Forever prohibiting plural or polygamous marriages."]
Now, understand me, I am not taking the ground that unlawful cohabitation—"polygamous living"—as it has come to be called—is not now contrary to the law in Utah. That it is under the ban of the law is known to every one. But it became so because our state Legislature, after the constitutional convention had settled this vexed question upon the terms here pointed out—our state Legislature (and why I have never yet understood) proceeded to unsettle what had been settled in that convention, picked up the part of the old territorial law that had been discarded by the convention and enacted it with the rest of the code prepared by the special code commission.
Hence unlawful cohabitation is under the ban by our state enactment; and I am not arguing that polygamous living is not against the law, and am not attempting to justify any one in the violation of that law. I am now merely pointing out the fact that in our compact with the government of the United States disruption of marital relations coming down to us out of the past constituted no part of that compact. The terms of the compact are here in the Enabling act and in the Constitution, and may be read and known of all men.
That compact was not made between the Mormon Church leaders, as claimed by Mr. Kearns' adopted speech, and the United States government, but between the people of the United States acting through Congress and the chief executive of the nation, and the people of Utah, acting through their representatives in the Constitutional convention. Utah's Constitutional convention sought earnestly to meet the demands made upon our people by the nation. The chief executive of the nation by accepting the Constitution we had formed and proclaiming Utah's admission into the Union, said we had succeeded in meeting those demands. To undertake now to read into that compact something that was not demanded by the Enabling act, and not conceded by the convention, that is not expressly found in its terms, and not fairly to be implied from them, is infamous. Yet that is what is constantly sought to be done, and we have all sorts of extravagant claims made as to what the Mormon Church leaders pledged in order to obtain statehood—the compact they made with the nation, and how the Mormon Church has broken it, but never a word do we hear as to the compact itself. The Mormon Church leaders made no pledges to obtain statehood, except as in common with all the people of the state they accepted and ratified the compact implied in the Enabling act and the provision in the Utah Constitution forever prohibiting polygamous or plural marriages and providing penalties for that offense. The Mormon Church officials pleaded for amnesty for their people, it is true, but amelioration of the hard conditions which a cruel enforcement of the law imposed, not statehood, was the object of their petition.
The foregoing, then, was the compact between the State of Utah and the United States. The question now is, Has it been violated by the State of Utah or by the United States. Certainly not by the latter; and I affirm, with absolute confidence that the affirmation cannot be successfully contradicted, that the compact has not been violated by the State, or the people of Utah. On the contrary, I