law before it became a statutory offense: that its characteristic quality is the fraud in which it is committed; that neither in England nor in the United States, have bigamy and polygamy been legally regarded as allied acts; and that in the few States and Territories where the latter is defined and forbidden, it is treated as a misdemeanor distinct from the former; and yet there is throughout the opinion of the court a visibly painful effort to make it appear that the two are identical. Thus the court remarks:
"From that day"—1785—"to this, we think it may safely be said there never has been a time in any State of the Union where polygamy has not been an offense against society, cognizable by the civil courts, and punishable with more or less severity."
This is simply untrue. In not many of the States has polygamy been forbidden by statute; and in the most, if not in all, the punishable offenses are defined and the penalties prescribed by acts of the Legislature. In all the States and Territories bigamy, and, in several of them, by recent acts, polygamy is prohibited. It is not agreeable to witness the supreme judiciary of the Republic laying down the doctrine that it is one of the functions of civil government to prescribe the conditions upon which domestic and social order are t6 be maintained; for that is proof of ignorance of the principles upon which civil governments are founded It is still less agreeable to witness the same tribunal laboring to erect a criminal common law upon the basis of the acts of local legislatures; and this especially when such acts are the creatures of the imagination; for that is an indication of something more to be deprecated than ignorance.
"Marriage," says the court, "while, from its very nature, a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.” Whatever else it may be, marriage is a private contract, the legal status of which is not affected by sacred or sentimental considerations; nor do the ethical principles which apply to it differ from those which are applicable to other compacts upon mutual considerations. If the parties are of the proper sexes, the proper age, of sound mind and contracting disposition, the agreement is interpretable and—if untainted by fraud or deceit—binding in accordance with its conditions. One of these conditions usually is, that the parties shalt live and cohabit together, so long as they both survive.
The right and the custom of contract antedates government, and is more authentic. A fundamental civil maxim forbids
