In Peak's Evidence (Norris), 248, it is said: "It is clearly settled that a woman who was never legally the wife of a man, though she has been in fact married to him, may be a witness against him; as in an indictment for bigamy, the first marriage being proved by other witnesses, the second wife may be examined to prove the marriage with her, for she is not de jure his wife."

Mr. Greenleaf, in his work on evidence, volume 3, says: "If the first marriage is clearly proved and not controverted, then the person with whom the second marriage was had may be admitted as a witness to prove the second marriage, as well as to other facts not tending to defeat the first or legalize the second. There it is conceived she would not be admitted to prove a fact showing that the first marriage was voidsuch as relationship within the degrees, or the like-nor that the first wife was dead at the time of the second marriage; nor ought she to be admitted at all if the first marriage is in controversy."

The result of the authorities is that, as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. When the first marriage is duly established by other evidence, to the satisfaction of the court, the second may be admitted to prove the second marriage, but not the first, and the jury should

have been so instructed.

In this case the injunction of the law of Utah,

that the wife should not be a witness for or

against her husband, was practically ignored by the court. After some evidence tending to show the marriage of plaintiff in error with Emily Spencer, but that fact being still in controversy, Caroline Owens, the second wife, was put upon the stand and allowed to testify to the first marriage, and the jury were, in effect, told by the court that if, from her evidence and that of other witnesses in the case, they were satisfied of the fact of the first marriage, then they might consider the evidence of Caroline Owens to prove the first marriage.

In other words, the evidence of a witness, prima facie incompetent, and whose competency could only be shown by proof of a fact which was the one contested issue in the case, was allowed to go to the jury to prove that issue and at the same time to establish the competency of the witness.

In this we think the court erred.

It is made clear by the record that polygamous marriages are so celebrated in Utah as to make the proof of polygamy very difficult. They are conducted in secret, and the persons by whom they are solemnized are under such

to extract the facts from them when placed upon the witness stand. If both wives are excluded from testifying to the first marriage, as we think they should be under the existing rules of evidence, testimony sufficient to convict in a prosecution for polygamy in the Territory of Utah is hardly attainable. But this is not a consideration by which we can be influenced. We must administer the law as we find it. The remedy is with Congress, by enacting such a change in the law of evidence in the territory of Utah as to make both wives witnesses on indictments for bigamy.

For the error indicated, the judgment of the Supreme Court of the Territory of Utah must be reversed and the cause remanded to that court, to be by it remanded to the district court, with directions to set aside the verdict and judgment and award a venire facias de novo.*

Exclusion of Jurors by Reason of Color.
NEAL VS. DELAWARE.

Report Vol. 103, p. 370.

1. The adoption of the Fifteenth Amendment rendered inoperative a provision in the then existing Constitution of a State, whereby the right of suffrage was limited to the white race.

2. Therefore, a statute confining the selection of jurors to persons possessing the qualifications of electors is enlarged in its operation so as to embrace all those who, by the Constitution of the State, as modified by that amendment, are entitled to vote.

3. The presumption should be indulged in the first instance, that the State recognizes as binding on all her citizens and every department of her government an amendment to the Constitution of the United States, from the time of its adoption, and her duty to enforce it within her limits, without reference to any inconsistent provisions in her own Constitution or statutes.

4. In this case, that presumption is strengthened and becomes conclusive, not only by the direct adjudication of the highest court of the State of Delaware that her Constitution had been modified by force of the amendments to the Constitution of the United States, but by the entire absence of any statutory enactment, since their adoption, indicating that she does not recognize, in the fullest legal sense, their effects upon her Constitution and laws. Where, therefore, a negro, indicted in one of her courts for a felony, presented a petition alleging that persons of African descent were, by reason of their race and color, excluded by those laws from service on juries, and praying that the prosecution against him be removed to the Circuit Court of the United States-Held, that the prayer of the petition was properly denied.

5. Had the State, since the adoption of the Fourteenth Amendment, enacted any statute in conflict with its provisions, or had her judicial tribunals repudiated it as a part of the supreme law of the land, or declared that the acts passed to enforce it were inoperative and void, there

*For reference to this by President ARTHUR, see page 59; and for legislation on the subject, see pp. 51-56.

would have been just ground to hold that the case was one embraced by Section 641 of the Revised Statutes, and, therefore, removable into the circuit court.

6. The exclusion, because of their race and color, of citizens of African descent from the grand jury that found, and from the petit jury that was summoned to try, the indictment, if made by the jury commissioners, without authority derived from the Constitution and laws of the State, was a violation of the prisoner's rights, under the Constitution and laws of the United States, which the trial court was bound to redress; and the remedy for any failure in that respect is ultimately in this court upon writ of error.

7. Upon the showing made by the prisoner, the motions to quash the indictment and the panels of jurors should have been sustained.

8. The court reaffirms the doctrines announced in Strauder v. West Virginia* (100 U. S. 303), Virginia v. Rives (id. 315), and ex parte Virginia (id. 339).

Error to the Court of Oyer and Terminer of New Castle county, State of Delaware. Mr. Justice HARLAN delivered the opinion of the Court, Chief Justice WAITE and Justice FIELD dissenting.

Refusal of Habeas Corpus in the Sergeant Mason Case.

No. 16 (original).—OCTOBER TERM, 1881. Ex parte: Petition for writs of Habeas Corpus John A. Mason. and Certiorari.

Mr. Chief Justice WAITE delivered the opinion of the Court.

This is a petition for a writ of habeas corpus to release Mason, the petitioner, from confinement in the Albany penitentiary under a sentence by a general court-martial. The facts are these:

Mason was a sergeant in Battery B of the Second Regiment of Artillery, in the Army of the United States. He was tried by a general court-martial on the charge of violating the 62d Article of War, in that "having been ordered with his battery from Washington Barracks for guard duty at the United States jail, in the city of Washington, D. C., and having arrived at said jail for said duty," he "did thereupon, with intent to kill Charles J. Guiteau, a prisoner then confined under the authority of the United States in said jail, wilfully and maliciously discharge his musket, loaded with ball cartridge, at said Guiteau through a window of said jail into a cell then occupied by the said Guiteau." Upon a trial duly had he was found guilty of the charge according to the specification, and sentenced "to be dishonorably discharged from the service of the United States, with the loss of all pay and allowances. due and to become due to him, and then to be confined at hard labor in such penitentiary as the proper authorities may direct for eight years." The Albany penitentiary was designated in due form as the place of confinement under this sentence.

A question which presents itself at the outset is whether this court has jurisdiction to issue such

For this Opinion, see McPherson's HAND-Book of POLITICS FOR 1880, pp. 12-15.

a writ as is asked, inasmuch as it has no power to review the judgments of courts-martial. Upon this question there is not entire unanimity of opinion among the members of the court, and we purposely withhold any decision at this time in respect to it. We all agree, however, that if a writ might issue there could be no discharge under it if the court-martial had jurisdiction to try the offender for the offence with which he was charged, and the sentence was one which the court could, under the law, pronounce.

The Sixty-second Article of War, under which Mason was tried, is as follows:

"All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or a regimental, garrison, or a field officers' court-martial, according to the nature and degree of the offence, and punished at the discretion of the court."

The offence charged in this case was clearly one to the prejudice of good order and military discipline.

The offender was a soldier in the army of the United States. As such, according to the specifications of the charge made against him, he was ordered on guard duty at the United States jail, in Washington, and, while on duty, he willfully and maliciously discharged his musket, with intent to kill a prisoner confined in the jail, under the authority of the United States. The gravamen of the military offence is that while standing guard as a soldier over a jail in which a prisoner was confined, the accused wilfully and maliciously attempted to kill the prisoner. Shooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline. While the prisoner who was shot at was not himself connected with the military service, the soldier who fired the shot was on military duty at the time, and the shooting was in direct violation of the orders under which he was acting. It follows that the crime charged and for which the trial was had was not simply an assault with intent to kill, but an assault by a soldier on duty with intent to kill a prisoner confined in a jail over which he was standing guard.

In our opinion the 58th and 50th Articles of War have no application to the case. The 58th is as follows:

"In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with an intent to kill, wounding by shooting or stabbing, with an intent to commit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offence, by the laws of the state, territory, or district in which such offence may have been committed."

"When any officer or soldier is accused of a capital crime, or of any offence against the person or property of any citizen of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or on behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him, in order to bring him to trial. If, upon such application, any officer refuses or wilfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service."

It is not pretended that any application was ever made under this article for the surrender of Mason to the civil authorities for trial. So far as appears, the person injured by the offence committed was satisfied to have the offender dealt with by the military tribunals. The choice of the tribunal by which he is to be tried has not been given to the offender. He has offended both against the civil and the military law. As the proper steps were not taken to have him proceeded against by the civil authorities, it was the clear duty of the military to bring him to trial under that jurisdiction. Whether, after trial by the court-martial, he can be again tried in the civil courts, is a question we need not now consider. It is enough if the court-martial had jurisdiction to proceed, and what has been done is within the powers of that jurisdiction.

It is objected that the sentence is in excess of what the law allows. The 97th Article of War is as follows:

"No person in the military service shall, under the sentence of a court-martial, be punished by confinement in a penitentiary, unless the offence of which he may be convicted would, by some statute of the United States or by some statute of the state, territory, or district in which such offence may be committed, or by the common law, as the same exists in such state, territory,

or district, subject such convict to such imprisonment."

Under this article, when the offence is one not recognized by the laws regulating civil society, there can be no punishment by confinement in a penitentiary. The same is true when the offence, though recognized by the civil authorities, is not punishable by the civil courts in that way.

But when the act charged as "conduct to the prejudice of good order aud military discipline" is actually a crime against society which is punishable by imprisonment in the penitentiary, it seems to us clear a court-martial is authorized to inflict that kind of punishment. The act done is a civil crime, and the trial is for that act. The proceedings are had in a court-martial because the offender is personally amenable to that jurisdiction, and what he did was not only criminal according to the laws of the land, but prejudicial to the good order and discipline of the army to which he belonged. The 62d article provides that the offender, when convicted, shall be punished at the discretion of the court, and the 97th article does no more than prohibit the court from sentencing to imprisonment in a penitentiary in cases where, if the trial had been had for the same act in the civil courts, that could not be done.

It is also claimed that the sentence is in excess of the jurisdiction of the court, because in addition to imprisonment in the penitentiary for the full term allowed by the laws of the District of Columbia for the offence of an assault with intent to kill, it subjects the offender to a dishonorable discharge from the army and a forfeiture of his pay and allowances. As has already been said, under the 62d article the punishment is to be at the discretion of the court. The 97th article only limits this discretion as to imprisonment in the penitentiary, and it has been nowhere provided that the punishment may not in other respects be greater than the civil courts could inflict.

"Cases arising in the land or naval forces" are expressly excepted from the operation of the fifth amendment of the Constitution, which provides that "no person shall be held to answer a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury." The limitation as to "actual service in time of war or public danger" relates only to the militia. Dynes vs. Hoover, 20 How., 65. It follows that the rule must be discharged; and it is so ordered.

In Senate-47th Congress, Ist Session. 1882, January 26-Mr. MILLER, of California, reported this bill (S. 71) from the Committee on Foreign Relations:

A Bill to execute certain treaty stimulations relating to Chinese.

Whereas, in the opinion of the Government of the United States, the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof: Therefore,

Be it enacted, etc., That from and after the