Page:Bigamy and Polygamy - Reed - c. 1879.pdf/20

 the evidences. In a new country, as the United States, there are no customs of which it may, in strictness be said "the memory of man runneth not to the contrary," and, hence, here, the term is not a complete expression of the principle. Every custom which is coeval with the community in which it prevails complies with the spirit of the rule under which immemorial customs have, in all ages, been held as the law.

The custom of plural marriages—polygamy—had its beginning with the birth of the community within which it prevails. It is therefore, to every legal intent and purpose, an "immemorial custom." It is the fundamental law of that community, and, as such is entitled to be judicially regarded. Whether or not the point was presented in this form, in the arguments of the counsel, docs not appear from the delivered opinion. It may be said that, in order to take advantage of the local custom, it is essential that it be specially pleaded. This, in civil cases, at nisi prius, is true in general. But in the case before the court, it was the custom itself, which constituted the basis of the litigation. It was a criminal proceeding, in which the question to be determined was: Has this particular custom a right to exist? The court knew what it was called upon to decide, and what it was deciding. It was not ignorant of the fact that, in determining the case of the plaintiff in error, it was dictating the future of thousands of men, women and children; decreeing whether or not, in legal contemplation, in time to come, the men of a great and orderly community, were to be counted criminal profligates, the women criminal prostitutes and the children nameless illegitimates.

The court had the question before it. Substantially, it was the question it decided. It was not an unimportant question. The difference between human happiness and human misery is a momentous difference—a difference as wide as the human mind has the capacity to conceive. The annals of litigation, throughout all the ages, may be searched in vain for another instance in which the alternative between happiness and misery, to so great a multitude of human beings, was immediately involved.

Between official and individual knowledge there is a debatable land free to judicial discretion. A court may know much that it does not know, and not know much that it knows. The court, in the case in question, may have preferred to be ignorant of the fact that the plaintiff in error was one of a large community, the legal status of whose members would be determined by the con-