OPINION.

I have been requested to give my opinion on the Constitutional validity of certain clauses in the proposed State Constitution for Utah relating to polygamy and bigamy.

These clauses are the following:

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 offences prohibited by this section shall not be barred by any statute of limitation within three years after the commission of the offence; nor shall the power of pardon extend thereto until such pardon shall be approved by the President ot the United States.

It will thus be seen that this provision requires for its operation no legislation whatever, but that indictments can be found under it and punishments inflicted, and the pardoning power in respect to the offence is limited by a check in the hands of the President of the United States.

This Constitution contains an article prescribing the manner in which amendments must be framed and adopted. But the power of amendment is limited by the following proviso, expressly drawn and devised so as to prevent any amendment or change in the anti-polygamy section without the assent of Congress :

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.

My opinion has been requested upon the question whether the proposed check on the pardoning power, which this Constitution would vest in the hands of the President of the United States in the case of an offence prohibited by a State Constitution, and the proposed limitation on the power of amending the Constitution in regard to the polygamy and bigamy denounced by Section 12 of Article XV., are consistent with or repugnant to our system of government. This question of the limitation of a State sovereignty by a compact between the State and the United States is, in the precise aspect in which it here

arises, a new one; but it is not a new question in principle, and there are precedents which will not only afford important aid in its solution, but which are conclusive.

As preliminary to the discussion of this question it will be useful to say something respecting the nature of the political system formed by the Union of the States under the Federal Constitution. The framers of that Constitution made a great discovery in the science of government, to which they were led by the consideration that the States were independent political communities, although then united by the Articles of Confederation for certain purposes common to them all.

The grand effort of the Federal Convention of 1787, which framed the Constitution of the United States, was to make a system of government for the Union, which, while having certain specific powers ceded to it by the people of each State, would still be consistent with the preservation of the State sovereignties in all other respects. The discovery that was made in the process of forming the Federal Constitution was that sovereignty, which, in our American sense, means only the political authority of the people, is divisible according to the subjects on which it acts; that some powers of government can be vested in one class of public agents, and all others can be retained by the people in whom they primarily reside; and thus that the individual inhabitants of separate political communities can be acted on by two distinct governments, each of which has its appropriate sphere. But this mode of constituting a mixed political system required that the Federal, or central government, should, by express provision, be made supreme and paramount in the exercise of all the powers ceded to it by the people of the several States. That the people of the several States would retain all the original and inherent powers not parted with by cession to the Federal Government was assumed to be a fundamental implication, resulting from the fact that the powers granted to the Federal Government were specific, described, limited and enumerated, and did not comprehend all the powers of sovereignty. But when the Constitution, as originally framed and promulgated, came before the people of the several States for adoption and ratification, they were not content to leave this very important matter to implication; they demanded an express reservation of all the powers which were not to be ceded by the people of the several States to the Federal Government, or which they were not to be prohibited from exercising. Accordingly the Tenth Amendment, adopted in 1789-91, was made to declare :

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

By this reservation, every State remains a self-governing political community, in respect to its own inhabitants, in every relation in which those inhabitants are not by the Constitution of the United States placed under the authority of the Federal Government.

It is this mass of rights, privileges and powers not vested in the Federal Government, but retained by the people of each State, that constitutes the State sovereignty. It follows as a necessary consequence from this system, that the people of every State in this Union have under their entire control every relation of their inhabitants that is not under the control of the United States, by reason of some provision in the Federal Constitution. With the domestic relations of their inhabitants the States can deal as they see fit.

There is another marked and prominent characteristic of our political system evinced by the provisions of the Federal Constitution.. It is that each State, by and through that Constitution, enters into compacts and agreements with all the others. They are prohibited from making agreements with each other without the consent of Congress; but they may and do covenant perpetually and irrevocably, by and through the Constitution of the United States, that the Federal Government shall have and exercise all the powers ceded to it by their assent to the Constitution, and that no State shall exercise any power prohibited to it by that instrument. The idea, therefore, of compacts, covenants and agreements between the separate States, as members of the Union, and the United States as the representative of all the States collectively, is imbedded in the Federal Constitution, and forms its principal strength. It is what gave the Federal Government authority to vindicate and assert its own existence and powers against an attempt of certain States to break the compacts which they had respectively made with the United States when they ratified and adopted the Constitution.

The 10th section of Article I. of the Constitution contains the prohibitions which it has laid upon the States. Some of these prohibitions are absolute; others relate to things that can be done only by the consent of Congress. Every one of them, both those that are absolute and those that are conditional, relate to things that every State would have a perfect right to do if it had not covenanted with the United States, in and by the Constitution, that it will not do them. But the prohibitions owe all their force, all their obligation, all their restraining efficacy, to the compact which every State has made with all the others, collectively styled the United States, whereby each State has limited its own sovereignty in

certain respects over which it would otherwise have retained full control.

It is not to be imof these things the And if it is asked

It follows from this statement, as a legitimate deduction, that such a covenant, entered into between the several States and the United States, clothes the Federal Government with authority to enforce the prohibitions when a State undertakes to break the compact into which it has entered. Take, for example, one of the absolute prohibitions : No State shall enter into any Treaty, Alliance or Confederation.” If any State were to do what is thus prohibited, is it to be supposed that there would be no remedy? that the United States would have no constitutional power to prevent the operation of the treaty, alliance or confederation? Take one of the conditional prohibitions: "No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace." agined that if a State were to undertake to do one United States would be powerless in the matter. what the remedy would be, I answer that it would not be by Federal action against the State itself in its corporate, political or sovereign capacity; it would be by appropriate legislation to reach, restrain or punish individuals who should undertake to carry out the will of their State in respect to a thing that it had covenanted that it would not do or attempt to do. This authority, which results necessarily from the right of the United States to execute every part of the Constitution, rests for its foundation on the compact that every State has made with the United States that it will not exercise its own sovereignty in certain matters, but that in those matters it has submitted its own sovereignty to the control of Congress.

Commencing, then, with the frame-work of the Constitution alone, we find that it is largely and primarily founded in irrevocable compacts between each State and the United States, whereby every State has diminished its own sovereignty in certain important particulars. Other examples of the diminution or limitation of the State sovereignties will be found in the amendments adopted after the close of the Civil War, some of which largely curtailed the previous State powers. These curtailments and diminutions of State sovereignity rest on compacts made by the several States with the United States.

What, then, is to prevent a new State, or the people of a proposed new State, when they present themselves for admission into the Union under a Republican Constitution, from doing that which every State did when. it ratified and accepted the Constitution of the United States, whether it was one of the original thirteen States, or was one that came into ex