33
no better than ourselves." With it, the question was not whether the accused had committed the act charged, but whether he was guilty; whether the deed was of such a nature that the common conscience demanded its punishment. ‘The jurors are "judges of the law and of the fact;" that is to say, they are judges whether the character of the fact is such as to make expedient the application of the law.
According to this principle, in the trial of the case under consideration, Mormons were in no wise unfit for the position of jurors. On the other hand, they had every requisite legal and moral qualification. They were peers and of the vicinage, capable to speak the view of the community to which all alike belonged. Who better than they could judge what was suitable to its "peace and dignity?" By every consideration of right and justice their exclusion from the panel was an act of wanton and illegal oppression. According to the terms of the indictment, it was not the Territory of Utah, nor the Mormon body, nor the principles of Mormonism nor polygamy that was on trial; it was a single individual. If he was a criminal, and there were any interested in his punishment, it was the indiscriminate inhabitancy of his own neighborhood. If there were any who were able to judge whether, according to the common standard, he was too much of a reprobate to be allowed to go unrestrained, it was they who best knew his disposition.
But it was, in fact, Mormonism and its domestic relations that were on trial; and when the Act of 1862 was passed, the judgments against them was foreordained. The equivocation em- bodied in the statute has borne throughout its appropriate fruits, in sophistications of the law, in violation of the rules of jurisprudence, in the abandonment of fixed maxims and precedents, in the privation of the defendant of legitimate means of defense, and in the arbitrary and tyrannical disparagement of the whole of a numerous and loyal population. The court has done its work—all the courts have performed their respective parts in the programme, accordingly as the same were appointed; but they have not done justice. They have won a round of applause of a number of fanatical men and silly women, whose fanaticism and silliness, so far as lies in their power, they have made the law of the hand. But they have done that against which every spark of true manhood will protest; a deed disgraceful to themselves, to civilization and to humanity.
