The 1852 Utah Territorial Legislature enacted a peculiar statute concerning the rights of illegitimate children. This statute was to be later referred to by United States Supreme Court Justice Brown as a novelty among legitimacy statues. 1
The impetus for this particular piece of legislation was not an alarming increase in bastards and immorality in newly settled Mormon Utah, but possibly because of the public announcement that same year of the doctrine and practice of polygamy among the Mormons.
The sage wording of the 1852 statute acted as a safeguard for the inheritance rights of polygamist's children. The wording of this statute can rightly be termed sage since it did not favor only the illegitimate children of polygamous unions, but all children. Since the statute protected any illegitimate child it was not ruled unconstitutional. The pertinent portion of the 1852 statute provided that "Illegitimate children and their mothers inherit in like manner from the father, whether acknowledged by him or not, provided it shall be made to appear to the satisfaction of the court, that he was the father of such illegitimate child or children." (Page 557) The wording was not biased for polygamists only.
However, the length of time this piece of legislation would be protective of polygamy was not demonstrated until reviewed by the Supreme Court of the United States in 1891.
In the Utah Law Review, Orma Linford has briefly commented on legal aspects of the major court cases concerning inheritance rights of polygamist's children. However, the purpose of this paper is to closely examine more than just major legalistic aspects of these court cases.
Linford determined that certain constitutional aspects were the determining factor in these court cases. However, the unusual political and religious society that existed in Utah which the members of the Utah Judicial and Legislative systems were well aware of, was not as apparent to the United States Supreme Court. Therefore, the favorable outcome, for the Mormons, on the United States Supreme Court level is due to differing interpretations of whether the 1852 enactment actually helped or hindered the attempt, of Congress, to break up the system of polygamy.
This paper will be limited to tracing only Utah Territorial Court cases dealing with inheritance rights of polygamist's children.
Chapman v. Handley - Utah Supreme Court
George Handley died in 1874 without making a will. He left four children born of lawful wedlock by his wife Elizabeth. He also left four children of his polygamous wife, Sarah A. Chapman. The only major question recorded in the case was whether the illegitimate, polygamous children were entitled to a share in the estate. 2 The majority opinion given in this Utah Court Case was that the 1852 territorial enactment on illegitimacy was not in force at the time of George Handley's death. This was because of the court's interpretation that a provision of the
1862 Anti-bigamy Act annulled the 1852 Utah Territorial Legislature Enactment giving illegitimate children the right to inherit.
The court record states that according to the respondents (i.e. the lawyers in the case who respond to the lawyers appealing for the polygamist's children) the interpretation of the 1862 Anti-bigamy law was constitutional because of the authority given to Congress to annul territorial laws in the 1850 Organic Act. Therefore, if the 1862 Act actually annulled the 1852 Territorial Act, then the four polygamists' illegitimate children could not inherit from their assumed biological father. This question was solved by determining the intent of Congress when they passed the 1862 Anti-bigamy Law. (Page 674).
Very interesting arguments were bandied back and forth by the responding and appealing attorneys. The respondents stated that in 1852 there was no provision or law in the Utah Territory by which illegitimate children or their mothers could inherit from the father. According to the respondents, this was the unquestioned condition in the Territory when this statute was enacted. The 1852 enactment appears to have been a prudent and obvious safeguard against future anti-polygamy enactment's that might in some way hinder plural marriage in Utah.
The respondent brought up a hypothetical example to show that the 1852 Act was passed for the exact purpose of shielding polygamy. The court records quoted them as asserting the following:
Imagine a woman approached with a proposition of polygamy, under such circumstances; no public sentiment against it to deter or hinder. The anxious inquiry would be as to the legal STATUS and rights of herself and children. By this statute they were provided for. But it is contended that it would tend to deter men from entering into polygamy, and would tend to create a sentiment against it on the part of legal wives; but this would not be so as to people who believed in it. It cannot be doubted that if polygamy was right this would be a proper provision, and its advocate must so regard it. (Page 675)
This quotation amply demonstrates the awareness of some attorneys of the unusual situation in Utah. Also this quotation should indicate that others members in the Utah Judicial system had access to this alternative interpretation of the intent of the 1852 Act.
The respondent attempted to justify any harm done to polygamous children as far as designating them as illegitimate and having no rights to inheritance, by rationalizing that it was necessary in order to break up the system that produces illegitimate children of illegal polygamous unions. They further rationalized that in so doing it would lessen the future numbers to be brought into the world "ill begotten." (Page 675) It was also stated that the universal moral distinction of bastards and the social stigma that went with it served a useful purpose of curtailing sexual irregularities.
Probably the strongest and most complex legalistic point put over by the respondent was the final point of the interpretation of the 1862 Anti-bigamy Act as seen in relation to the latter intent of Congress to use all lawful means to abolish polygamy as seen in the 1882 and 1887 Anti-polygamy Acts. The court record gave the respondent's following intricate statement on this issue in the written majority opinion of Judge Henderson:
Congress has recognized the potency of denying to illegitimate children the rights of legitimacy and inheritance as a means of breaking up and discouraging polygamy in the Acts of 1882 and 1887 ... it is provided that illegitimate children begotten thereafter shall not inherit; and so emphatic is the language of the latter act that it may well be doubted whether testamentary [having to do with the administration of wills] provisions can be made for them ... But it will be seen that the Act of 1882 legitimates polygamous children begotten before its passage. If under the territorial law they already inherited 'in like manner' as legitimate children, this would have been unnecessary. To my mind, all this is only evidence that congress intended to legislate upon all these subjects for itself primarily, without reference to the territorial enactment's, except to disapprove and annul all acts of parts of acts thereof which tend to encourage or countenance polygamy.
It can be seen from this remark and others in this case that apparently some participants in the Utah judicial system realized that the 1852 Act was constructed for the main purpose of protecting one aspect of the system of polygamy. What the judges and lawyers were not in agreement on was the constitutionality of the 1852 Act and whether letting it stand in force helped or hindered the breaking up of the polygamy marriage system. In the majority opinion written by Judge Henderson he gave his view of the issue. He continues:
It is a concession in favor of illegitimates then begotten, and as before stated, this is coupled with a provision denying the right of inheritance to those begotten thereafter. The Territorial Act, on the contrary, establishes a continuing rule that runs with the future. In this respect there is the same difference between the territorial and federal acts that there would be between a pardon granted for a past offense and a commission to go forth and commits an offense in the future with impunity. (Page 675)
Concern with the arguments of the respondents, the opinion rendered was that the 1852 Territorial Act was disapproved and annulled by the 1862 Anti-bigamy Act and that the judgments of the lower probate and district courts should be affirmed.
Utah Supreme Court Judges Zane, on July 28, 1890, less than two months before Wilford Woodruff's Manifesto, Henderson was the other judge that decided in favor of the argument of the respondent and against the petition of the four polygamous children for a distributive share of the estate of George Handley. (Page 675)
Utah Supreme Court Justice, John Blackburn, disagreed with the decision of Judge Henderson and Chief Justice Zane and wrote the dissenting opinion.
Blackburn contended in his written opinion that the rights of illegitimate children to inherit were correctly subject to legislation and if the 1852 enactment were legally in force in 1874, then the polygamous children were fully entitled to inherit. No action had been made by the Territorial Legislature to change or repeal that Act as of 1874. The only objection was that the 1862 Anti-bigamy Act, as interpreted by the lower courts of Utah, nullified the 1852 act.
Blackburn clarified the purpose of the act of Congress of 1862 as being: "to define and punish polygamy and to annul laws of the Territory that in anyway made polygamy legal or gave it countenance or support." Blackburn further pointed out that nothing was stated in the 1862 bigamy law in reference to illegitimate children, "and if that subject was in the mind of Congress it would have been expressed and not left in doubt or uncertainty." He emphatically stated: "Courts do not favor the repeal of laws by implication, and laws are never interpreted to repeal former laws, unless the two are so repugnant that they cannot both be administrated and allowed to stand."
Blackburn backed up this legal interpretation by quoting four United States Supreme Court cases. (Page 676) Blackburn continued to demonstrate the vagueness of the 1862 Anti-bigamy Act and the hazardous precedent of allowing the courts to make and annul laws by making this kind of judicial interpretation. He further contended that to give the interpretation to the 1862 Act, as the respondents had contended, would add greatly to the uncertainty and conjuncture surrounding the real intent of Congress. He further backed up the argument that, had it been Congress's intention to nullify the 1852 Territorial Act (of which Congress was well aware, according to Blackburn) then Congress would have specified that nullification. For additional support he quoted from Potter's Dwar. ST. 219: "It is always to be presumed that the legislature when it entertains an intention [Congress] will express it, and that [expression (or intent) will be] in clear and explicit terms."
Blackburn also brought out a point from the exact wording of the 1862 Act. The Act reads: "...but to only annul all acts and laws which establish, maintain, protect, or countenance the practice of polygamy..." (Page 676) He cited a case and explained that when statutes are constructed, general words followed by an example relate specifically to those cases stated. Then he related this concept to the basic issue with this convincing narrative:
...words of explanation cannot enlarge the meaning of the words they are intended to explain. These words are to be interpreted according to their common or ordinary meaning. Allowing illegitimate children to inherit from their fathers does not maintain it; does not establish polygamy; does not support it; does not maintain it; does not shield it; does not countenance it; for it is consistent with the severest punishment of polygamy and its entire overthrow that illegitimate children should inherit from their fathers. (Page 676)
Thus we see that Judge Blackburn, contrary to Judge Henderson's interpretation, viewed the 1852 Act as constitutional. Blackburn also viewed the 1852 Act as not encouraging the system of polygamy
for the reason stated below.
Blackburn used the 1882 Edmunds Law to support his interpretation from a different perspective than did the respondents and the two concurring judges.
It was not the intention of Congress in 1862 to disinherit polygamist's children because the Edmunds Law stated that all children of polygamous marriages born before the 1st, January 1883, shall be legitimate claimed Blackburn. Thus according to him, nothing was intended by Congress in the Act of 1862 as far as disinheriting polygamist's children and Blackburn went on further to say "If, therefore, the Territorial Law, by inference, encouraged and countenanced polygamy, much more did the law of Congress, and that idea cannot be entertained for one moment." (Page 676)
Likewise, points out Blackburn, the 1887 Edmunds Tucker Law made polygamist's children legitimate up to 12 months after the passage of the Act. And in his words:
|...|so that if allowing illegitimate children to inherit from their fathers encourages polygamy, Congress is guilty
of fostering that institution; for the period of gestation is nine months. That leaves three months for men to beget illegitimate children, and encourages polygamy for that length of time. (Page 677)
In the closing words of his dissent, Blackburn stressed the fact that illegitimate children have had the right to inherit from their fathers from 1852-1890, and that the title to much property was based upon its validity. He further made the personal charge that the courts should not and ought not to declare that law invalid without weighty reasons. (Page 677)
Regardless of the excellent arguments brought out by the council for the polygamist's children and the point brought out by Blackburn in the dissenting opinion, the two to three Utah Supreme Court decision in the Chapman v. Handley case ruled against the illegitimate children inheriting from their father.
Chapman v. Handley - United States Supreme Court
Three years later the case was taken to the United States Supreme Court on January 17, 1894. It was dismissed 12 days later because the case did not meet jurisdiction requirements, as the amount to be inherited was not sufficient to justify a Supreme Court ruling. 3 This was settled short of three years after the decision of illegitimates inheritance rights had been reversed in a very similar case on the Supreme Court level.
The irony of this decision can only be seen in relationship to the case, Cope v. Cope, that had followed Chapman v. Handley 4 in the Utah Supreme Court that same day, July 28, 1890. In the Cope Case, a description of the estate (land in this case) and its value was determined immaterial when reviewed.
Cope v. Cope - Utah Supreme Court
George H. Cope, appellant, v. Thomas H. Cope and another, respondents, was decided on authority of Chapman v. Handley. The Third District Court of Utah had denied the appeal of George H. Cope, the illegitimate deceased child of polygamist Thomas Cope, who died in August of 1864 without a will, in which George tried to establish his right to inherit land from his deceased father. The Utah Supreme Court affirmed the decision of the Third District Court. 5
Cope v. Cope - United States Supreme Court
Within five months, George Cope's appeal was submitted to the United States Supreme Court, December 22, 1890. The Utah Supreme Court's decision was reversed on January 19, 1891, and George H. Cope was determined to be entitled as an illegitimate child of a polygamous union, to share in his father's estate.
Justice Brown delivered the majority opinion of the court and very significantly pointed out that the Organic Act gave Utah Territory power to legislate similar to other states. Also, that all territorial laws were submitted to Congress for disapproval. He further points out that other states have legitimacy laws and that the legislature is competent to set its own moral standards for its own states (with the exception that Utah Territory was subject to disapproval by Congress if it saw fit). Justice Brown admitted that society was in a peculiar condition in Utah; however, it was not the fault of the children and they should not be punished. He further contended that it is a punishment for the father to have his inheritance divided to other than his legitimate offspring. (Page 833)
Justice Brown, living in Washington, was apparently not sufficiently acquainted with Utah's unusual political and religious society. He apparently did not understand like the Utah Judicial system had, concerning the real intent of the Utah Legislature in enacting the 1852 Statute. In Utah it was considered almost an honor, not a punishment, for children to be born and receive the heritage of being from a plural marriage family. Because of this misunderstanding, it is possible to see how Justice Brown could make the following statement: (and still feel he was following the intent of Congress, to break up the plural marriage system.)
The question is then presented. Does the Territorial Act of 1852 establish, establish, support, maintain, shield or countenance polygamy? It clearly does not establish, support or maintain it. Does it shield or countenance it? It does not declare the children of polygamous marriages to be legitimate; in fact, it treats them as illegitimate, or rather, it does not accept by indirection or inference, mention them at all; but it puts all illegitimate children, whether the fruits of polygamy or of ordinary adulterous or illicit intercourse, upon an equality and vests them with inheritable blood. 6
Justice Brown, then in his written opinion, reiterated the impurity of annulment by implication (as stated in Blackburn's dissent) but with more fervor and judicial documentation. (Page 833-834) In addition, Justice Brown addressed a revised statute of Utah Legislature passed in 1876, which pertinence was apparently discussed by the applicants and respondents in the Chapman Case, but was apparently not determined as significant. Therefore, it was not mentioned in the opinion or dissent, but only summarized in the introduction to the case published in the Utah Reporter. 7
Justice Brown offered the following informative observations concerning this 1876 statute.
In 1876 the legislature of Utah, being evidently in some doubt as to the proper interpretation of the Congressional Act of 1862, passed another act declaring that 'every illegitimate child is, in all cases, an heir to its mother. It is also heir to its father when acknowledged by him. 8
Justice Brown was in agreement with Blackburn's dissent on the interpretation of the 1882 and 1887 Anti-polygamy Acts. That is, the action of making the children legitimate in the 1882 and 1887 Acts demonstrated clearly what the current intent of Congress was. By so doing, he proved to the satisfaction of the majority of the Supreme Court judges that the 1862 Anti-bigamy Act was not intended to annul the 1852 Utah Territorial Statue in question. The final decision pronounced was that the polygamist, Thomas Cope's child, George H. Cope, was entitled to share in the estate of his father and that the decision of the Utah Supreme Court was reversed.
From viewing only the court cases in this paper it is difficult to unequivocally establish certain evaluations of the objectivity in the interpretations of the different judges; however, the following generalization is assumable from what has been evaluated thus far in this paper. The Utah Courts, headed by Chief Justice Zane, seemed determined at using the inheritance of polygamous children as a tool to help abolish the Mormon polygamy marriage system. The United States Supreme Court, on the other hand, seemed more intent on upholding legal procedures and protecting the rights of innocent children not understanding the unique society in Utah. Nonetheless, the amount of effect on the Courts by the issuance of the Manifesto (after the Utah Supreme Court decision in the Chapman case in July of 1890, and prior to Cope's Supreme Court Case that December in 1890,) remains nebulous at this point in research.
In Re Pratt's Estate - Utah Supreme Court
Orson Pratt died without making a will in 1881, leaving a large estate. Some of his numerous children were legitimate, according to the current law; however, most of them were considered by law to be illegitimate, having been born of plural wives. The decision in the Third District Court was that the illegitimate children did not have the right to inherit.
In April of 1891, the case was taken to the Utah Supreme Court. The lower court's decision was reversed and the following decree was entered. "That all of the children acknowledged by him as such in his life-time, or proved to be such by satisfactory evidence, shall share in the distribution of the estate." 9 The case was decided on the precedent set in the recent Supreme Court Case, Cope v. Cope. 10
The point that distinguished this case from the earlier cases was that Orison Pratt died after 1876.11 The new wording in the revised statute of 1876, was slightly different than the wording in the 1852 act, as can be seen by the following partial quotation of that statute. "Every illegitimate child is in all cases an heir to its mother. It is also an heir to its father when acknowledged by him.'' 12 This statute appears to be an attempt to counter any possible ramification of the 1862 act. Its intent, as far as Utah Mormon polygamists and legislators were concerned, was to continue to shield the system of polygamy by protecting the inheritance right of the |progeny| of that system. However, since the United States Supreme Court was of the opinion that if (loose moraled) polygamists had to share their inheritance with their 14 bastard children as well as legitimate children, then the 1852 statute acted as a deferent to polygamy. (See footnote 6, page 833-844 of that reference). Therefore if the Supreme Court had set the precedent that the 1852 Act was actually a deferent to polygamy. It follows that the Utah Supreme Court, in the Orson Pratt case, would rule that the similarly worded 1876 statute should also be held valid.
Thus the rights of illegitimate polygamist's children were carefully protected by the 1852 and 1876 statutes. When the 1882 Edmunds Act called into question inheritance rights of illegitimate children born one year after its passage, the Utah Territorial legislature reacted by passing the following provision, 1884 statute section 4:
"Every illegitimate child is an heir to the person who acknowledges be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part as the case may be, in the same manner as if he had been born in lawful wedlock." 13
Thus making it necessary in the 1887 Edmunds Tucker Act to once again equivocally determine under what conditions offspring were legitimate heirs.
In the opinion rendered in the In re Garr's Estate case, the concurring justices affirmed that there is no question that the 1884 statute, section 4 remained in force until 1887. The Edmunds Tucker Act was so clear on the point of polygamous children's right to inherit, that the Territorial Legislature's hands were apparently at last tied. However, with statehood status in 1896, the Edmunds Tucker Act could no longer declare children of polygamous unions illegitimate and thus void of inheritance rights. 14
In view of the analysis of court cases in this paper, the apparent major reason illegitimate children of polygamous unions retained their rights to inheritance for circa 38 years was due to the United States Supreme Courts different interpretation of the intent of the 1852 Utah Territorial Act. It also follows that the United States Supreme Court seemed concerned more with protecting the right of innocent children. On the other hand, the Utah Supreme Court Judges were more intent on dismembering all aspects of the plural marriage system, inheritance of illegitimate children being one of them, that is up until the Manifesto.
Inheritance of polygamists' children was only one aspect of the numerous polygamy court cases of which Orma Linford states that the Mormons "were captive suspects in the most concentrated crusade against 'crime' in the nation's history." 15
1 Orma Linford, "The Mormons and the Law: The Polygamy Cases," Utah Law Review, 9(1964)557-559. In just three pages she briefly describes the three major court cases in their paper. She uses her own interpretation of what was most significant in each case. Linford does not; however, at tempt to wade through the post-statehood cases even though she has a better legal background than I. Also she does not offer any reason why these court cases came up many years after the fathers died. Also she does not give any historical background on inheritance court cases.
Rather than having overabundant footnotes marked Ibid., since all quoted and paraphrased material comes from the same source, and basically in the same order, there is only one footnote per section of the paper dealing with that case. However, for convenience of the researcher, page numbers of the court cases will be put in parenthesis and will refer to the previous footnote.
2 Chapman v. Handley, 24 Pac 673. Page 673-677. From this point on, when the term "polygamists' children" is used it is referring to the children that were determined by law to be illegitimate being born of his plural wives.
3 Chapman v. Handley, 151 US 433. (Pages 227-228)
4 0rma Linford, "Polygamy Cases", Page 558. Footnote #66 tells how the Handley case was attempted to be brought up again by the Utah State Legislature.
5 Cope v. Cope, 6 UTAH 63. (Page 63)
6 Cope v. Cope, 137 US 682. (Pages 832-834)
7 Chapman v. Handley, 7 UTAH 49 (Introduction)
8 Cope v. Cope, 137 US 682. (Page 834)
9 Re Pratts Estate, 7 UTAH 278. (Pages 278-279)
10 Cope v. Cope, 137 682.
11 Re Pratts Estate, 7 UTAH 278.
12 Chapman v. Handley, 7 UTAH 49 (Introduction) Contains parts of the exact wording of the 1876 Utah Territorial Statue. (Additional wording in this statute has important implications in cases after statehood.
13 Re Garrs Estate, 31 UTAH 57. (Page 70 and 71) Quotes Utah Laws 1884. Page 75, Section 4.
14 There were two major cases dealing with the validity of Utah State Legislature Statutes concerning legitimacy of polygamous children. These cases deal, on the major part, with technical and legal issues and not with the issues here-to-for covered in this paper.. Mansfield v. Neff, 43 Utah 258 and Rohuer v. District Court, 41 Utah 279, deal with complicated and intricate legal issues. They do not fall within the scope of this paper, that of tracing Utah Territorial Court Cases, but would prove very interesting.
15 0rma Linford, "Polygamy Cases", Utah Law Review, 9(1963) 370.
Professor James B. Allen
December 18, 1980