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In 1886 George Ticknor Curtis defended Lorenzo Snow and the freedom of religious conscience before the United States Supreme Court. Snow, a Latter-day Saint apostle, had been convicted on three separate counts of unlawful cohabitation in Utah’s territorial courts and his attorney, Franklin S. Richards, had appealed Snow’s cases to the Supreme Court. Richards enlisted the help of Curtis, a prominent lawyer and constitutional scholar, who drew upon a half century of legal experience to mount a rigorous defense. Curtis did not defend the Saints’ polygamous practice but rather Snow’s conscientious efforts to comply with antipolygamy law. He contended that the rulings of the trial courts infringed upon Snow’s religious freedoms and thus violated the First Amendment.

Benjamin J. Falk portrait of George Ticknor Curtis.

Curtis made his argument less than a decade after the court had interpreted the Constitution’s religion clauses for the first time. These clauses came up for interpretation as the court addressed antipolygamy legislation in Reynolds v. United States (1878). In this decision, the court indicated that while Congress could not curtail religious “opinion,” it could legislate against “actions which were in violation of social duties or subversive of good order.”[1] On this basis, the court upheld antipolygamy legislation as constitutional. Arguing in the wake of that decision, Curtis aimed to ensure that the court’s reasoning did not infringe upon religious opinion and innocent practices resulting from religious belief. To that end, Curtis tried to instruct the court on Latter-day Saint religious belief, which supported his argument that Snow had been convicted of unlawful cohabitation under an incorrect construction of the Edmunds Act (1882). In defending Snow, Curtis drew upon his legal acumen and his religious understanding in hopes of securing the Saints’ freedom of religious conscience.

Curtis’s legal experience had deep roots that ran through the central crisis of antebellum America (slavery) and the most notorious Supreme Court case in American history (Dred Scott,1857). Curtis’s relationship to this crisis highlights the different ways in which Americans addressed the issue of slavery. While some Americans staked out definitive stances either for or against slavery, many others—including Curtis—assumed more middling positions, which took different shapes in relationship to distinct circumstances.

During the early 1850s, George Curtis and his brother Benjamin played prominent roles in enforcing the Fugitive Slave Law (1850). In Boston, they assisted in the return of fugitive slaves while facing strong abolitionist resistance. Later in that same decade, George served as co-counsel for Dred Scott, a formerly enslaved Black man who had sued for his freedom and whose case had come before the Supreme Court on appeal. In that same case, George’s brother Benjamin, who was a Supreme Court justice, dissented from Chief Justice Roger Taney’s decision, which designated Scott as a noncitizen and ruled that Congress did not have power to prohibit slavery in the territories. On the surface, this suggests that the Curtis brothers had a profound change of heart on the issue of slavery, but such a conclusion misapprehends them and the contexts within which they acted. These contexts demand attention to understand George’s defenses of both Scott and Snow.

Curtis’s upbringing, including his education and legal training, informed his allegiance to the existing American constitutional order. He embraced this order from a comfortable place among the New England elite; he had good reason to combat ideas and actions that might upset a social order in which he wielded a significant amount of cultural power. Curtis advanced what some scholars have described as “sectional nationalism,” a New England–informed Unionism that had been advanced by prominent figures such as Daniel Webster, who was a close friend of Curtis.[2] While Curtis viewed the constitutional order through a regional lens, the order consisted of a federalism that protected state sovereignty and granted the central government specific designated powers. Curtis rooted this balance in the original constitutional compromise and believed that the preservation and success of the Union depended on the maintenance of that compromise. He thus felt compelled to challenge ideas and actions that threatened the balance. Most often, Curtis located the threat in abolitionists, but he also worried about southern overreach. He believed that northerners should keep their commitment to the Fugitive Slave Clause and its later iterations, and that politicians and justices should respect Congress’s right to allow or prohibit slavery in the territories.

In addressing such threats, George Curtis participated with his brother Benjamin and other New Englanders in a conservative approach to reform, one that placed progress in the control of social elites who aimed to avoid seismic shifts in the social order.[3] This approach corresponded to a conservative view of the American Revolution, which the Curtis brothers described as a break from the past even as they also emphasized continuity with British political traditions.[4] In an 1841 speech, George urged attention to “what was carefully preserved, as well as . . . what was bravely overthrown.”[5] That which “was carefully preserved” included common law, which the Curtis brothers valued as the accumulation of legal wisdom stretching back into Britain’s past. The conservative approach to reform also involved a notion of deference to those with legal training and experience, such as the Curtises. Thus, George encouraged his contemporaries to “trust in the gradual expansion and perfection of society, in the light of religion, letters, truth, and law.” George resisted change resulting from popular excitement, and instead encouraged developments that relied on “faith and patience and calmness of endeavor.”[6]

Curtis applied this reasoning to slavery—which presented the clearest threat to the Union in the antebellum era—and to polygamy as well. But whereas his contemporaries increasingly viewed polygamy as a great danger to the social order, especially after the crisis over slavery had been resolved, Curtis deemed the impassioned response to polygamy as the greater threat. In the divisive slavery crisis, Curtis strove to strike a balance between abolitionism and proslavery overreach, but in his mind, the “Mormon question” was a decidedly one-sided affair, and he worried more about the tyranny of the Protestant majority than he did about Latter-day Saint polygamy. He thus encouraged humane legislation, enforcement, and patience as polygamy faded away.

In this effort, Curtis helped identify a less obvious danger to the social order. Protestants sometimes terrorized marginalized religious groups, and when governments failed to offer protection and redress, that failure belied the nation’s commitment to form “a more perfect Union.” But while the tyranny of the Protestant majority sometimes surfaced in acts of physical violence, it most often operated undetected. As David Sehat notes, “The shadowy character of the moral establishment was its power.”[7] This power frequently functioned through state laws aimed at upholding the Protestant establishment, though the power also crept into federal legislation and Supreme Court decisions, as indicated in antipolygamy laws and cases. Such cases laid bare the coercive nature of the Protestant establishment. Against this force, Curtis defended a marginalized group who he believed posed little threat to the constitutional order.

Curtis’s Early Life and Career: An Education in Law and Religion

George Ticknor Curtis was born in Watertown, Massachusetts, on November 28, 1812, as the United States warred with Great Britain. Curtis described his early life in a memoir of his only sibling, Benjamin Robbins Curtis, which was published in 1879. He wrote that their father, Benjamin Curtis, worked in “the merchant marine.”[8] His father’s work included the sale of enslaved Africans, though George omitted this detail in the memoir.[9] He only noted that his father “died abroad, at so early a period in his life that [he had] no recollection of him.”[10] George’s mother, Lois Robbins, raised him and his brother in her parents’ house until George turned eleven years old. For a time, Lois maintained a dry-goods business and a library to provide for her two sons and to ensure that they received an education. Owing to her work and great sacrifice (and to the assistance of their prominent uncle George Ticknor), Benjamin and George attended Harvard College and Harvard Law School.[11]

In 1829, while George was an undergraduate and Benjamin was a law student, Joseph Story, a sitting Supreme Court justice, became the inaugural Dane Professor of Law. In 1842 George married Story’s daughter Mary.[12] Regarding Story’s arrival and work at Harvard, George noted, “There had not been such an opportunity for legal education in America.”[13] Although the law school had been founded in 1817, few students had attended before Story’s arrival. His professorship turned the law school into a viable institution. Story lectured on various aspects of law and turned those lectures into published commentaries, including his Commentaries on the Constitution of the United States, a seminal three-volume work.[14] In his lectures, writings, and decisions, Story advanced a constitutional commitment that prioritized the preservation of the Union. George, who graduated from Harvard College in 1832 and from Harvard Law School in 1836, developed a similar expertise on the Constitution and a similar commitment to the Union.[15] At Harvard, the Curtis brothers received the best legal training available in the United States, though that training came in the form of a particular vision of the Constitution and the Union.

While in Cambridge, these brothers also received an education in religion of a particular sort. In the first decade of the nineteenth century, Harvard had shifted in religious orientation from Congregationalism to Unitarianism. In the memoir of his brother, George noted “the Unitarian influences which surrounded [Benjamin’s] youth.”[16] This, and much else that George wrote about his brother’s environment, beliefs, and actions, also applied to himself. In reflecting on the state of Unitarianism in the early nineteenth century, George explained that while Boston’s preachers had rejected Calvinism, they “were, both by temperament and by the force of circumstances, strictly conservatives in every thing else.”[17] This description may suggest more about Curtis’s social conservatism and his desire to mitigate threatening differences than it does about Unitarianism, but Unitarian belief seems to have influenced him.[18]

In particular, Curtis appears to have embraced the Unitarian appeal to religious understanding, which William Ellery Channing had outlined in his ordination sermon for Jared Sparks in 1819. In that sermon, Channing emphasized the need for “charitable judgment, especially towards those who differ in religious opinion.”[19] Channing observed that history demonstrated the ways in which Christians had failed to embrace this ideal. He noted that “an enemy of our religion, if asked to describe a Christian, would, with some show of reason, depict him as an idolator of his own distinguishing opinions . . . sheltering, under the name of pious zeal, the love of domination, the conceit of infallibility, and the spirit of intolerance, and trampling on men’s rights, under the pretence of saving their souls.” While identifying Christian hypocrisy—which usually took the form of Protestant hypocrisy in the new republic—Channing urged his contemporaries to “abstain from condemning men of apparent consciousness and sincerity.”[20] He encouraged “charity, forbearance, [and] a delight in the virtues of different sects.”[21] Although Unitarians did not always follow this counsel themselves, some individuals embraced Channing’s idea of religious understanding. George Curtis appears to have been among them.

In August 1834, while Curtis was still enrolled at Harvard Law School in Cambridge, a Protestant mob burned a Catholic convent in Charlestown, just a short distance from the unfinished Bunker Hill Monument being constructed under the supervision of figures such as Curtis’s uncle George Ticknor and Curtis’s friend Daniel Webster. At the same time that this monument to liberty was being constructed, a Protestant mob razed a Catholic sacred space to the ground.

Title page of Curtis's Rights of Conscience and Property. Courtesy of University Libraries, Catholic University of America.

This was one of several riots stemming from anti-Catholic and anti-immigrant sentiment. In this case, the mob’s actions were fueled by fear, rumor, and possibly the sermons of Lyman Beecher. In the aftermath the jury acquitted twelve of the thirteen defendants; the thirteenth, a sixteen-year-old boy, was pardoned soon after his conviction. Attempts to indemnify the diocese of Boston for the loss of property repeatedly failed due to a lack of popular and political support. In 1841, five years after Curtis had been admitted to the Massachusetts bar, he authored a document recommending full remuneration to the diocese. It was presented before the Massachusetts legislature, but to no avail.[22] In 1842, a year in which another doomed proposal for remuneration reached the legislature, Curtis wrote a pamphlet entitled The Rights of Conscience and of Property; or the True Issue of the Convent Question.

In commenting on the burning of the Ursuline Convent, Curtis brought his legal acumen, his religious sensibilities, and his regional pride to bear on the question. His regional framing corresponded to the era’s thinking, which designated religious freedom as a local concern. In Barron v. Mayor & City Council of Baltimore (1833), Chief Justice John Marshall had ruled that the Bill of Rights did not apply “to the legislation of the States.”[23] In 1845, three years after Curtis published his pamphlet, the court reaffirmed its prior ruling in a case dealing with a New Orleans law that limited Catholic funerals to one chapel.[24] The ruling indicated that it was up to state governments to protect religious liberties. Before the passage of the Fourteenth Amendment (1868), the Bill of Rights protected states from congressional overreach, but not the rights of individual citizens from state infringement.[25] And even after the Fourteenth Amendment suggested that the federal government would offer protection from local infringement, it took decades before the written word concretized into practical application. Therefore, in the early 1840s, Curtis did not ask for federal intervention. Instead, he directed his attention toward the Commonwealth of Massachusetts.

Curtis viewed the attack on the convent as an aberrant blot on a place and people that had long professed to value religious freedom. He wondered how a citizenry “who respect the rights of conscience and of property . . . have never searched into the merits of a question involving their immediate reputation for all that is thus said to characterize their state?”[26] Curtis condemned the state for having failed to protect Catholics from the mobbing, either through legislation or through “active interference of a militia,” but he focused on the fact that the state had not provided restitution.[27] He observed that while the state could not repair the violation of Catholic conscience, it could at least indemnify the diocese for property lost. Curtis believed that the state’s reluctance to do so stemmed from anti-Catholicism, which made it impossible to “hear with impartiality any cause or claim in which [Catholics] are interested.”[28]

In challenging Bay Staters’ common fears of Catholicism, Curtis raised the specter of the tyranny of the religious majority.[29] He rejected the notion that Catholicism threatened to overtake Protestantism—noting that “we [Protestants] are essentially and emphatically a protesting people”—and dismissed Catholicism’s “supposed hostility to our republican institutions.”[30] He observed that such fears generated “a vast deal of prejudice,” which prevented “fair discussion” on matters such as providing compensation to Catholics.[31] If citizens could set aside these unfounded suspicions, they would “perceive the impolicy, the absurdity, and the danger of denying such protection and reparation, because the particular form of religion . . . is one which the majority of the people do not desire to have propagated.”[32] Then the people could focus on maintaining “the inviolability of the rights of conscience” and working “against the power and oppression of the masses.”[33] Curtis urged his readers to remember that “there is but one Saviour for” both Protestants and Catholics, and praised the Catholics, “who have borne such provocations . . . so truly like men and Christians.”[34] With these words, Curtis indicated his concern with the Protestant majority’s proclivity to infringe upon the rights of marginalized religious groups and his willingness to challenge that proclivity. Curtis believed that treating Catholics as Christians and fellow citizens was crucial to securing “the public peace,” which he described as “infinitely important.”[35]

In the case of the Ursuline Convent, Curtis had identified an obvious instance in which the Protestant majority had violated the freedoms of a religious minority. While many of his Protestant contemporaries believed that Catholicism posed a threat to the social order, Curtis rejected their fears as unfounded and instead identified their prejudicial behavior and beliefs as the more troubling threat. At least a few periodical writers agreed with Curtis and hoped his pamphlet would disabuse “the mind of the many . . . of its easily acquired and fostered prejudices.”[36] Curtis’s efforts anticipated his defense of Snow’s right of religious conscience over four decades later, when he identified and countered the legislative and legal power of the Protestant majority. In that later argument on behalf of Utah Saints, as in his earlier defense of Massachusetts Catholics, Curtis worried about the public peace.

That emphasis on the public peace shaped Curtis’s approach to a matter more national in scope: the crisis over slavery. In his 1842 pamphlet on the rights of conscience and property, he observed that “the worst wounds which the rights of free discussion have ever received, in this country, have been owing to the concurrence of sentiment between the magistrates and the mob, in some of the riots occasioned by the proceedings of the ‘Abolitionists.’” Curtis noted that “the unpopularity of their proceedings” with both neighbors and “the authorities, has in some places withdrawn from them a decent protection of the great rights of free discussion.”[37] Here Curtis highlighted the problem of officially sanctioned anti-abolitionist violence, despite his own objection to abolitionism. While Curtis worried about actions that curbed abolitionists’ free speech, he worried more about abolitionist activities that violated slaveholders’ right to their property.

The Abolitionist Threat and the Slave Power Threat

During the early 1850s, both George and Benjamin Curtis played prominent roles in enforcing the Fugitive Slave Law in Boston, where George was a United States commissioner. As a commissioner, he acted as a magistrate judge who assisted district court judges within the federal court system. Benjamin, meanwhile, had already played a prominent role in cases dealing with slavery. In 1836 he had served as counsel for the defense in Commonwealth v. Aves, a case to determine whether a northern defendant could retain custody of his southern son-in-law’s six-year-old slave, Med. The defendant’s daughter, Mary Slater, had brought Med to Boston and had left her in the care of her father, Thomas Aves. Benjamin Curtis argued that the constitutional compromise demanded that northerners respect southern state laws regarding slave property. However, Chief Justice Lemuel Shaw ruled that Med had been made free by the fact that Slater had voluntarily brought Med into a free state.[38] In the memoir of his brother, George Curtis explained that at this particular moment in the nation’s history, the case “could be discussed and decided calmly and rationally,” as there “was no political motive whatever” on the part of the parties involved.[39] However, according to Curtis, all this had changed by the early 1850s.

The Curtis brothers faulted other individuals and groups with political motivations but believed that they maintained a neutral position in aiming to uphold the Fugitive Slave Law. However, their own political sensibilities informed these efforts. Their Union-first politics shaped their involvement in enforcing the unpopular new law. In this regard, they followed the lead of their close friend and fellow Whig Massachusetts senator Daniel Webster, who defended the law in a March 1850 speech. Webster’s speech immediately drew strong denunciations from many antislavery proponents. In contrast, Benjamin, who was then serving as a state representative, organized a welcome parade to receive Webster upon the senator’s return to Boston. This act signaled that the Curtis brothers were ready to back up Webster in word and deed.

George and Benjamin Curtis followed through in a series of cases involving fugitive slaves. In October 1850, William H. Hughes of Georgia arrived in Boston to capture William and Ellen Craft. Hughes approached several local justices, including George Curtis, to issue arrest warrants. George hesitated, if only because he was uncertain about his authority to act under the new law. Despite his hesitation, George advised Hughes, who used his advice and the advice of others to obtain warrants. Meanwhile, Benjamin Curtis prepared a legal opinion for US marshal Charles Devens, who was charged to apprehend the Crafts. (While serving as attorney general in the late 1870s, Devens represented the United States in Reynolds.)These efforts were thwarted by members of the Boston Vigilance Committee, including Transcendentalist Theodore Parker, who helped the Crafts escape to Canada.[40]

The next month, a frustrated George Curtis organized a meeting for “the Citizens of Boston . . . who reverence to the Constitution.” The meeting was held in Faneuil Hall and Benjamin Curtis was the featured speaker. He emphasized allegiance to the founders’ original compromise and condemned abolitionists’ calls to ignore the Fugitive Slave Law. Benjamin believed their rhetoric endangered the “safety and peace” of the Union.[41] He stated that “men of forecast must then have foreseen, and subsequent events have demonstrated . . . that without an obligation to restore fugitives from service, Constitution or no Constitution, Union or no Union, we could not expect to live in peace with the Slaveholding States.”[42] This insistence on respecting constitutional commitments for the sake of the Union, which prevailed among Whigs, shaped the Curtis brothers’ involvement in assisting in the return of fugitive slaves.[43]

Benjamin and George continued to face stiff opposition, which only deepened their resolve to enforce the law. In February 1851 George issued an arrest warrant for Shadrach Minkins of Virginia and oversaw the hearing for Minkins’s rendition. During the trial, Curtis granted the defense an additional three days to prepare, but before the courtroom had been cleared, the Boston Vigilance Committee and a crowd of supporters rescued Minkins. This was precisely the kind of excited action that Curtis found detrimental to the maintenance of the constitutional order. A few months later, in April 1851, Curtis issued a warrant for the arrest of Thomas Sims and oversaw his hearing in the presence of an armed guard. At various points, Sims’s counsel asked for additional time to prepare, and each time Curtis granted them less than the requested time, perhaps in an attempt to avoid another rescue attempt by abolitionists. He succeeded. On April 11, Curtis issued a certificate of removal and three hundred deputies marched Sims to a ship that carried him back to bondage.[44] In Curtis’s publication on the Ursuline Convent, he had indicated that the state should protect Catholic property through “active interference of a militia”; in 1851, over a decade later, he likewise authorized the use of force to protect a slaveholder’s property.

The Curtis brothers were also involved in the rendition of Anthony Burns in 1854. In late May, abolitionists attempted to rescue Burns while he was imprisoned in a courthouse. This rescue attempt resulted in the death of a US marshal. President Franklin Pierce sent federal troops to Boston to maintain order. Days before, Pierce had signed into law the Kansas-Nebraska Act, which repealed the Missouri Compromise and instituted popular sovereignty. This law permitted settlers to decide whether to introduce slavery into territories formerly designated as free. This directly related to the issue that George Curtis would argue in Dred Scott. In the meantime, Burns was returned to slavery.

Soon after, Benjamin Curtis, now a Supreme Court justice, issued an indictment against Theodore Parker, minister of the Twenty-Eighth Congregational Society of Boston, for his purported involvement in the attempted rescue. The indictment failed to produce convictions, but it did draw a published response from Parker, who criticized the Curtis brothers as proslavery pawns.[45]

This was only the latest in an ongoing conflict between Parker and the Curtises, and Parker continued his assault in his sermons. In speaking of prior attempts to reclaim fugitive slaves, he grouped “Commissioner Curtis” among those who will “be borne down to posterity, riding on the scourged and bleeding shoulders of Thomas Sims.”[46] Parker also took aim at many of Boston’s other ministers. He noted that only “a few ministers have been faithful to the spirit of the Bible, and to their own conscience, heedless of law and constitution.”[47] In a footnote where Parker more fully addressed his critique of the clergy, he noted that “one Doctor of Divinity vindicated the attempt of his parishioners to kidnap” or return Burns.[48] George Curtis was among the parishioners Parker had in mind.

Curtis’s minister, Ezra Stiles Gannett, felt the sting of Parker’s words. Defensive and distraught, Gannett delivered a sermon in which he emphasized the “need of calm and resolute mind” and instructed his parishioners to “be very cautious how we allow any difference of opinion . . . to tempt us to ascribe the course another may pursue to moral cowardice.”[49] Sounding a bit like Curtis, Gannett noted that “order is the first condition of a safe or prosperous community.”[50] However, he proceeded to urge northerners “not to fold [their] arms and close [their] lips in patient acquiescence” to the Fugitive Slave Law, even if it divided the North and the South.[51]

Title page of Curtis's Observations on The Rev. Dr. Gannett's Sermon. Courtesy of the Library of Congress.

Curtis, who was present for Gannett’s sermon, felt somewhat betrayed by his minister and responded in print.[52] He warned Gannett of the violence that would accompany a sectional split and lectured him on the Constitution, stressing obedience to the Fugitive Slave Law. With recent events fresh in his mind, Curtis praised the work of rational legal minds and wrote that “no excitements, no public meetings, no mobs, are necessary to prompt the members of that profession to their duty.”[53] Like his brother Benjamin, George believed that questions about the constitutionality of slavery should be left to calm, cool legal deliberation, devoid of the influence of public excitement, the flames of which figures such as Parker had fanned.

Although the Curtis brothers believed that abolitionists presented the most clear and present threat to the Union, they were not the only group of Americans who stoked the fires of national discord on the question of slavery. The Curtis brothers also worried about proslavery overreach, including politicians who made broad claims about slave property that ran up against other portions of the Constitution, such as the necessary and proper clause, which granted Congress incidental powers. As a result, when a Supreme Court case arose in which the political context portended a sweeping proslavery decision, the Curtis brothers focused their efforts on countering the threat of the Slave Power.

The case in question, Dred Scott v. Sandford, centered on a Black man who sued for his freedom on the basis that his owner had taken him into territories that congressional acts had designated as free. Initially, it seemed that the court would write a narrow opinion that would return the case to the jurisdiction of Missouri courts, but because Justices Benjamin Curtis and John McLean were prepared to write dissenting opinions on the question of congressional power, the court determined to deliver a broad ruling instead. Considering these developments, Montgomery Blair, counsel for Dred Scott, enlisted George Curtis’s help on the question of congressional power. As Curtis noted, on December 15, 1856, three days before the second argument, Blair “requested me to assist him. . . . I told him . . . that I thought I knew enough of the constitutional history of the country to . . . maintain the affirmative of the proposition that Congress could prohibit the existence of slavery in any Territory of the United States.”[54] In his oral argument, Curtis provided a historical narration showing that Congress had legislated both for and against slavery in the territories.

Although Curtis’s argument failed to convince Chief Justice Roger Taney and the court’s majority, it was taken up by the dissenting justices. Taney ruled that Scott was not a citizen and thus could not sue, which meant that the case rested outside of federal jurisdiction. But rather than close his decision, Taney proceeded to declare the Missouri Compromise unconstitutional and thus dismissed a long-standing assumption that Congress had power to prohibit slavery in the territories. Taney grounded these arguments in a historically flawed account that bound his views to those of the framers. Taney’s decision drew sharp criticism from Justices John McLean and Benjamin Curtis.[55] They contradicted Taney’s historical assertions about Black citizenship and built upon George Curtis’s historical argument that Congress had power to determine slavery’s legality in the territories.[56] Justices McLean and Curtis emphasized the framers’ expectations of change and insisted on readings attentive to historical development.[57]

Benjamin Curtis focused on the facts of the argument, but near the close of his opinion he censured what he viewed as a new constitutional reading resulting from “reasons purely political.” He insisted that “political reasons have not the requisite certainty to afford rules of juridical interpretation,” and thus “judicial tribunals . . . cannot decide upon political considerations.” Because political reasons differ “in different men” and “in the same men at different times,” and because the framers had been clear on the territorial clause’s present and future purpose,Curtis demanded a “strict interpretation.”[58] He worried that decisions such as Taney’s would institute “a Government which is merely an exponent of the will of Congress, or . . . an exponent of the individual political opinions of the members of this court.” Curtis faulted the court not only for being politically motivated but also for issuing a ruling that deviated from original constitutional meanings and subsequent practices consistent with those meanings.

Benjamin and George believed their constitutional readings followed from clear legal rules of legal interpretation; they did not recognize how their own political leanings shaped those readings. This explained their approaches to issues involving slavery during the 1850s. In Benjamin’s memoir, George explained that his brother could be found on either side of the slavery debate due to his constitutional commitments. He wrote that Benjamin made “great efforts to convince his fellow-citizens that the slave-holding States and their people had every right to the full and faithful execution of that constitutional stipulation which required the extradition of fugitive slaves. But when the demands of the slave interest . . . extended beyond that stipulation, and claimed for slavery a position which he believed neither the Constitution nor the system of the Union had given to it, his mind was found to be just as capable of an unbiased and impartial examination of those demands as if he had never contended for a Southern right.”[59] From George’s perspective, allegiance to the Constitution and the Union demanded that he and his brother take stances against popular refusals to keep constitutional commitments and against legal constructions resulting from political excitement.

The 1850s and Beyond: Post-Dred Scott and Polygamy

The title page of Curtis's Just Supremacy of Congress.

In the late 1850s, George Curtis continued to address constitutional questions, and even made statements about the other “relic of barbarism,” polygamy. In 1859 he wrote a pamphlet in response to Senator Stephen Douglas’s latest assertions regarding popular sovereignty, the idea that the inhabitants of a territory had the right to self-government. This idea had found legislative sanction in the Kansas-Nebraska Act but had come under further question in the wake of Dred Scott. Curtis rejected Douglas’s comparison, which posited that the colonies and England during the Revolution had the same relationship that now existed between the territories and Congress in the new United States. He explained that the framers did not aim to embody the Revolution in the Constitution but instead sought to preserve some of the Revolution’s fruits and “save us from the domination of mobs.”[60] Trying to show that Congress had power to legislate in the territories, Curtis reiterated the argument he had made in Dred Scott, providing historical examples of congressional legislation and Supreme Court decisions. According to Curtis, congressional legislative power served as a protection against the “absolute will of the majority.” Curtis cited the violence in Kansas as the result of “violent, proscriptive, and tyrannical” legislation.[61]

In making his point, Curtis applied the notion of popular sovereignty to problems that might arise in the future. He wrote that “polygamy is an institution which must be within this right, if the right exists in the unqualified extent for which Mr. Douglas claims it. This, and a variety of other institutions which might be against the will of Congress and the entire policy of a Christian civilization, would come within his principles.”[62] Curtis cautioned that unlimited popular sovereignty would allow territorial legislatures to “make lawful a plurality of wives,” or other laws that “may make the Territory a nuisance and a pest to the surrounding communities.”[63] Curtis identified a “portentous cloud which hangs upon our Western horizon,—the Territory of Utah,” and warned that the problem of polygamy “may call for all the Constitutional power that our fathers devised, and for all the physical resources that the country can spare, to enforce its supremacy.”[64] Curtis raised the specter of the second relic of barbarism to reemphasize the necessity of congressional supremacy in the territories.

Curtis’s argument had less to do with polygamy than with politics that aligned with his constitutional views. He criticized Republicans for arguing that Congress had power to prohibit but not sanction slavery in the territories, and he criticized Democrats for contending that Congress had no authority over slavery in the territories. His politics and his related constitutional understanding shaped his assertion that Dred Scott constituted a conclusion rather than a decision. In his pamphlet, Curtis included an appendix on this matter, noting that while a majority of justices had ruled on the issue, a number of them had decided differently. He thus questioned whether Dred Scott formed an “actual, authoritative, judicial decision.”[65] In the wake of the Civil War and the Reconstruction Amendments, which superseded Dred Scott, Curtis’s condemnation of the decision grew. In his brother’s memoir, he wrote that “the course of a majority of the judges in this case of Dred Scott precipitated the action of causes which produced our civil war.”[66] Curtis’s estimation of his own legal argument and of Benjamin’s dissenting opinion also grew, since history seemed to confirm their soundness. The legacy of Dred Scott, and of the Curtis brothers’ roles in the case, remained an important touchstone for George, as indicated in his frequent references to the case during his later defense of the Latter-day Saints.

Not long after writing his 1859 pamphlet, Curtis aligned with the Constitutional Union Party, a group that coalesced during the 1860 election with the stated aim of preserving the Union. The party included several former Whigs and some political legatees of the late Daniel Webster, including Curtis, who had authored and executed Webster’s last will and testament. After Lincoln’s election and the outbreak of Civil War, Curtis rejected the South’s right to secession, though he also disagreed with many of Lincoln’s wartime decisions. In 1862 he moved to New York and became a Democrat, an affiliation he maintained for the rest of his life. From New York, Curtis criticized several of Lincoln’s policies, including the Emancipation Proclamation. His brother Benjamin, who retired from the bench soon after Dred Scott, described Lincoln’s proclamations as “assertions of transcendent executive power.”[67] Among other things, Benjamin criticized Lincoln for inciting “a part of the inhabitants . . . to rise in insurrection against valid laws.”[68] Benjamin continued to voice the Curtis brothers’ concerns with maintaining order even amid war, and he viewed the possible enlistment of Black soldiers as a particular threat to that order. In the aftermath of the war and Lincoln’s assassination, the Curtis brothers also opposed the Radical Republicans, and Benjamin served as counsel for Andrew Johnson during his impeachment trial. Again, the Curtises framed their positions in constitutional terms, emphasizing what powers the Constitution did and did not grant to the various branches of government.[69]

In the decades after the Civil War, George continued to work as an attorney, including on railroad cases. He also published articles, pamphlets, and books, including one biography of Daniel Webster and another of James Buchanan.[70] Curtis wrote glowingly of Webster and justified many of Buchanan’s policies, though he avoided discussion of Buchanan’s decision to send an army to Utah Territory.[71] Curtis also wrote for the New York World, a leading Democratic newspaper, in which he criticized Republican policies. The paper sometimes commented on polygamy, as in an October 1871 editorial entitled “Abusing the Mormons.” The author stated that “the high-handed proceedings of the United States officials in Utah ought to be checked at once.” Noting that the “public sentiment . . . strongly condemns” polygamy, the author suggested that the practice would probably “gradually die out.” To that end, the author encouraged only careful and deliberate action on the part of the government.[72] These comments related to the newspaper’s political stance, as indicated in the next article, which described Republican president Ulysses S. Grant’s actions in the South as despotic. Curtis may have authored either or both articles. In any case, the ideas contained therein correspond to some of Curtis’s views, including those he later expressed in his defense of Lorenzo Snow.

“We Cannot Legislate Against an Idea”

In November 1885 federal officers descended upon Brigham City carrying an arrest warrant for Lorenzo Snow. A few years before, in 1882, Congress had passed a bill authored by Republican senator George F. Edmunds that criminalized “unlawful cohabitation.”[73] It was left to prosecutors and Charles S. Zane, the chief justice of the territorial court, to determine what constituted “unlawful cohabitation.” Several polygamists attempted to conform to the law by living with one wife, while others went into hiding to avoid prosecution. Lorenzo Snow did both. He lived only with Minnie, the youngest of his seven wives, and then, during the summer of 1885, he relocated to San Francisco. A few months later, in September, Zane began instructing grand juries that they could indict offenders for segregated periods of cohabitation. That same month, Snow returned to Brigham City, where federal officers found and arrested him on three counts of cohabitation for the years of 1883, 1884, and 1885. In the trials that followed, the Territorial District Court admitted “any testimony tending to show that the defendant held out to the world, or said that these ladies were his wives, or claimed them as such during the indictment.”[74] On the basis of such evidence, Snow was convicted on all counts and sentenced to three consecutive six-month terms and three fines of three hundred dollars. Franklin S. Richards appealed his convictions to the Utah Territorial Supreme Court, which upheld the district court’s ruling.[75] Richards then appealed the case to the United States Supreme Court.[76]

While in the nation’s capital in April 1886, Richards approached George Curtis and asked if he would serve as associate counsel. Weeks before, Chauncey F. Black, the lieutenant general of Pennsylvania, had written to Richards and recommended that he solicit Curtis’s help. Like Curtis, Black was a Democrat who had written for a New York City newspaper. Black described Curtis as “one of the leading men at the American bar,” who had “lived one of the most brilliant and eventful lives in the U.S.” Characterizing Curtis as “a conscientious, careful . . . man who thinks honestly as well as acts honestly,” Black encouraged Franklin to consider employing him. Black noted that Curtis had no knowledge of his recommendation but added “that his feelings are strongly with you.” Black explained that he and a “Mr. Gibson” met with Curtis and “drew him incidentally to the subject,” and reported that Gibson “was much impressed by his impromptu method of treating it.”[77] Whatever the connection between Black and the Latter-day Saints, Richards acted on his recommendation.[78]

And although Curtis had no prior involvement in the polygamy cases, and even though the trial was set to start within a few weeks, he “felt a strong sympathy for” Richards and accepted his invitation.[79] In 1856 Curtis had been drawn into a Supreme Court case at the eleventh hour, and three decades later he found himself in a similar position. Aside from Black’s letter, extant records do not shed much light on Curtis’s interest in assisting the Saints. Financial compensation certainly factored into the equation. Perhaps Curtis also saw Snow’s case as a chance to combat the latest threat to the constitutional order, this time arising in the form of a Protestant moral majority and allied Republican congressman, two forces that he had challenged in the past. Curtis’s concerns about popular religious and partisan political influence, along with his constitutional expertise on issues of congressional authority, made him a prime candidate to accept an unpopular role.

First page of Black's March 23, 1866, letter to Richards. Courtesy of L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University. Provo, UT.

In late April 1886 Richards and Curtis argued before the Supreme Court about what Curtis described as “a very grave” constitutional question.[80] Curtis centered the court’s attention on the First Amendment’s free exercise clause. Since the ratification of the Bill of Rights almost a hundred years earlier, the court had not had occasion to interpret this clause. This changed in the late 1870s with a case involving George Reynolds, a Latter-day Saint polygamist who had been charged under the Morrill Anti-Bigamy Act (1862). Because the case involved a citizen of a territory, rather than a state, the free exercise clause applied. Thus, the court considered the question as to “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.”[81] Ironically but also necessarily, the court relied on the history and example of a state—Virginia—to show that “marriage . . . is . . . a civil contract, and usually regulated by law.” The court universalized Jefferson’s words and a Virginia statute to distinguish between religious belief and action and to determine that Congress had power to legislate against a religious action that threatened the public order. While noting “Congress was deprived of all legislative power over mere opinion,” the court explained that Congress “was left free to reach actions which were in violation of social duties or subversive of good order.”[82] Reynolds’s religious belief did not give him the right to practice polygamy. The Reynolds decision countered the court’s proclivity to interpret the Constitution in favor of protecting local practice. Protestant moral reasoning backed and informed this decision, which tied Christian monogamy to democracy, and polygamy to despotism.[83] Emboldened by this decision, Congress had passed additional legislation under which Snow had been charged.

Curtis recognized that he was working against Protestant prejudice just as he had over four decades earlier when he responded to the burning of the Catholic convent. And yet, while the roots of the problem were the same, their fruits were different. In the latest instance, the attack on religious conscience came in the form of federal legislation rather than mob violence. In 1842 Curtis had worried about the state government’s failure to protect and remunerate the Catholic diocese in the wake of popular Protestant violence; now he seemed concerned that the federal government had assumed the role of enforcing the views of the Protestant majority against the Saints in Utah. It appears that Curtis found this particularly troubling. Rather than ask the government to protect a religious minority, he wanted the government to stand down from participating in the persecution of a religious minority.

Curtis did not attempt to defend polygamy but instead worked to create room for religious understanding. He recognized that Protestants viewed the Latter-day Saint religion as a threat, noting, “The whole Christian world scorns the idea of a subsequent and supplemental revelation.” But Curtis insisted that Protestant belief on this point was immaterial. Protestants needed to focus instead on understanding “what these people believe, have believed, and hold with perfect tenacity and sincerity of conviction, and have lived and died by.” [84] In emphasizing the need to grasp the content and depth of the Saints’ beliefs, Curtis invited Protestants to temporarily suspend their axioms about marriage, Christianity, and civilization:

Here we are with all our civilization around us, and all our sentiments and feelings on the subject of the marriage relation, almost incapacitated from understanding how there can be purity, womanly virtue, dignity of life, refinement and cultivation, domestic harmony, among educated people, maintaining this relation, in which several women stand as the wives of one husband. But whether we have to act upon this subject as legislators, or as judges, or as philanthropists, or as patriots, or as citizens, we can do no good, we can accomplish nothing but pain and misery for others, and mortification and baffled hopes and disappointed efforts for ourselves, unless we can rise to that condition of mind which enables us to stand in the inner circle of their feelings and convictions, and so far to treat them as our equals—equals before the law, equals before the God who made us all. Without doing so, we can never expect the Mormon women to meet us half way, or to meet us at all.[85]

In this remarkable statement, Curtis pled with the court—and the American public—to engage in an exercise in religious understanding. This was not a narrow legal argument, but neither were many of the legal arguments advanced during this period, especially when involving issues such as the practice of polygamy. Curtis understood the moral nature of the conversation. He recognized that polygamy tapped into Protestant Americans’ fundamental beliefs about religion and the nation and that those fundamental beliefs had given shape to the Edmunds Act. He thus acknowledged those beliefs and then asked the court to consider the beliefs of others.

Curtis insisted that the Constitution created room for such beliefs. He noted, “The doctrine, the philosophy, and the right of religious liberty in this country, are embedded in our fundamental law, and . . . we have not yet reached a condition of things in which belief, when so held, and so professed, and carried out in innocent conduct, is to be touched by the hand of criminal law.”[86] Curtis believed that Snow had been convicted of innocuous actions that resulted from his religious belief. On this point, Curtis concentrated on Snow’s language. The prosecution had procured testimony that Snow had introduced two women as his “wives” while under arrest. Curtis explained that Snow “spoke of the women as his ‘wives,’ meaning that by the religious law of his church he was bound to them in a spiritual and religious tie that did not necessarily signify the enjoyment of a carnal relation.” Curtis thus argued that Snow “could not be convicted of unlawful cohabitation by his language . . . without violating his rights of conscience.”[87] In this innovative argument, Curtis aimed to broaden freedom of belief to include freedom of speech.

Title page of Curtis and Richard's Pleas for Religious Liberty and the Rights of Conscience.

Curtis’s reference to Snow’s use of “wives” required some explanation. So he read from Joseph Smith’s 1843 revelation on plural marriage, which initiated a confused exchange between Curtis, Richards, and Justice Stephen Field. Field asked if the book from which Curtis read was “the Mormon Bible.” Richards explained that it was not but noted that the Book of Mormon “is sometimes called the Mormon Bible.” Curtis added that the book in question “is the recognized embodiment of the law of their Church.” Field then asked if the book contained “what is supposed to have been found on steel plates,” and again Richards explained that the book he had in mind was the Book of Mormon, while the book to which Curtis referred “contains the revelations received by Joseph Smith.”[88] This exchange with a Supreme Court justice highlighted the challenge that Curtis faced in attempting to make room for Latter-day Saint belief in a Protestant society. Turning to more familiar sacred texts, Curtis echoed the Latter-day Saint argument that polygamy had been sanctioned by Old Testament patriarchs and allowed by the New Testament Christ. Curtis had referenced the biblical precedent not to suggest that polygamy was “a fit condition for modern society” but to explain that the Saints had adopted a biblical marriage practice and then projected “the relation into the endless futurity.”[89] Curtis provided this theological discussion to explain that Snow’s use of the term “wives” did not necessarily imply a relationship that involved sexual relations.

On this point, Curtis referred to Angus M. Cannon’s case, which had reached the Supreme Court based on the contention that Cannon had ceased having intercourse with the two wives with whom he had been convicted of cohabiting. In the decision, delivered in December 1885, the court rejected this reasoning, explaining that the Edmunds Act aimed to “prevent a man from flaunting in the face of the world the ostentation and opportunities of a bigamous household, with all the outward appearances of the continuance of the same relations which existed before the act was passed.” Cannon remained convicted of unlawful cohabitation because he continued to live with two women, occupying “the same house and table.”[90] Snow’s situation was different, as he had been living with one wife. As Curtis explained, “No element . . . of the religious sense in which these people regard each other as husband and wife or wives . . . appeared in record in Cannon’s case.”[91] Despite this distinction, Judge Orlando W. Powers of the Third Territorial District Court had applied the decision in Cannon to Snow’s second and third cases, which centered on Snow’s language. While the court had distinguished between religious belief and action in Reynolds, Curtis tried to draw those lines more carefully.

To do so, he provided his own history of religious freedom. He referenced Jefferson, Madison, and the first congressional debates to illuminate the original meaning of the free exercise clause, which he understood to protect “the holding of religious beliefs and their avowal,” such as Snow’s use of the term “wife” in a religious sense.[92] On this point, Curtis insisted that “we cannot legislate against an idea. We cannot legislate against a thought or an expression of it. We cannot force any belief out of the human soul.”[93] Moving from beliefs to corresponding actions, Curtis noted that “the only possible limitation upon religious belief is that it shall not be pleaded in excuse for conduct which the legislative power sees fit to prohibit because it is injurious to the welfare of society.”[94] He stressed that “if the expression of a religious belief connects itself with conduct, with external acts, we must discriminate between that conduct and those acts which are plainly dictated by the belief, and are not per se injurious to the public welfare, and those which are so injurious, or are declared to be so, although dictated by a sincere religious belief.” Curtis allowed that polygamy and cohabitation, properly defined, were injurious, but deemed “visits of sympathy, contributing to support, providing the means of subsistence for women and children, in sickness or in health, in sorrow or in joy” as “acts which are not per se injurious to the public good.” Curtis reasoned, “We cannot define them as unlawful cohabitation without violating the rights of conscience.”[95]

In hopes of generating sympathy and understanding, Curtis buttressed this careful and inventive legal argument with a narration of the Saints’ history and a description of their community. He described the “Mormon religion” as “the most remarkable phenomenon of its kinds that has occurred for centuries,” referring to its claims to “new revelation” and its thousands of adherents. Curtis drew the court’s attention to the persecution the Saints endured in Missouri and Illinois, and to Smith’s murder “by lawless popular violence.”[96] In speaking of the Saints’ journey west, he described it as “the most remarkable expedition that has occurred, save in the difference of magnitude, since Moses led the Israelites out of Egypt.”[97] Curtis’s biblical allusions aimed to soften Protestant hearts. Curtis also appealed to regional and even personal sentiments, which harkened back to his discussion of the convent in Massachusetts. He noted that “there was a good deal of the New England blood among them at that time. Among those who emigrated from Nauvoo was an educated Connecticut lady who bore my family name.”[98] Curtis’s narrative aimed to make the foreign and strange more familiar and relatable.

Following his historical account, Curtis offered a description of the Saints’ orderly community in Utah Territory. He suggested that they had “made a community more orderly, more moral, more thriving, than any equal number of people anywhere.” Curtis, who never traveled to Utah, emphasized the lack of drinking shops and gambling and prostitution houses, and the unparalleled observance of Sunday worship. Only polygamy made them “obnoxious,” Curtis explained.[99] Curtis indicated that the practice had obscured much about Latter-day Saint belief and culture and had led some to use “the machinery of criminal law and pushing it up to and beyond the barriers which have been erected for the security of the rights of conscience.”[100]

Toward the end of his argument, Curtis returned to Snow and his wives and situated their relationships in the history of antipolygamy legislation. He emphasized the government’s prior lack of attention to the issue, pointing out that it had done nothing about polygamy until 1862, though the world had known about the practice for years. He further explained that the government had done little to enforce the 1862 law, a fact that he believed “must have some influence on the construction and application of the legislation.”[101] Curtis offered demographic data on polygamous marriages in Utah and then explained the housing situation of Snow and his seven wives through use of a diagram. He did this to emphasize the duration of the marriages, most of which began before the 1862 law, and to indicate that after the Edmunds Act, Snow had lived with one wife, Minnie, and had performed only innocent duties for the other wives. Curtis granted Congress’s power to make laws such as the Edmunds Act but insisted that the court provide a construction that allowed Snow to make religious avowals and perform noninjurious religious actions. The failure to make this distinction allowed some of the Saints’ opponents to go beyond the Constitution and “extend the kingdom of Christ by persecution, and to propagate a religion of love by the gospel of hate.”[102] Such words recalled William Ellery Channing’s 1819 sermon, wherein he had criticized Christians who persecuted those with different religious beliefs on a pretense of wanting to save their souls. Curtis expressed his own regret in failing to take notice of the Saints’ suffering and in frittering away “precious time that ought to have been given to the oppressed.”[103] Recognizing the close ties between Protestant religion and antipolygamy legislation, Curtis had closed his argument with an appeal to Christian sentiment.

Note from Daniel S. Lamont, President Cleveland's secretary, to Curtis. Courtesy of L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University, Provo, UT.

These arguments, which drew immediate and lasting praise among Utah Saints, had little effect.[104] On May 3, after learning that the court intended to dismiss the case for lack of jurisdiction, Curtis wrote to Chief Justice Morrison Waite.[105] He explained that he had not made an argument for jurisdiction due to the court’s ruling in Cannon, which he had received as precedent. Curtis pled, “It will be a very great misfortune if these cases . . . should be dismissed for want of jurisdiction.” He included a brief on the subject by Richards and suggested that “his argument in favor of the jurisdiction removes all doubt.” Curtis noted that criminal cases arising out of territories, as contrasted with those occurring in the states, had no appellate jurisdiction, and believed the court should maintain jurisdiction to provide a uniform construction throughout the Union.[106] Despite these arguments, on May 10, the court determined that because the Edmunds Act had not made a provision for the court to grant a writ of error, it could not rule on cases prosecuted under that act. Thus, the court vacated its decision in the Cannon case and dismissed Snow’s cases.[107]

Curtis in the Court of Public Opinion

After the decision, the Church continued to employ Curtis, who corresponded with both government officials and Church leaders, often addressing questions of jurisdiction and public opinion. Although extant records do not illuminate the context of Curtis’s letters, or his motivations for his continued involvement, Franklin S. Richards valued Curtis’s ongoing efforts on behalf of the Church. In a May 24 letter to John Taylor, president of the Church, Richards wrote to Taylor, urged the production of “a reliable history of our people” and noted that “Judge Curtis” and others “insist that our only salvation lies in the creation of a favorable public opinion.” Richards also mentioned the issue of jurisdiction and noted that “the Judge is evidently alive to the situation and doing what he can for us.”[108] The next day, Richards reported that Curtis “has written several good articles about us . . . and is evidently trying to do all the good he can. . . . He firmly believes that we are oppressed and persecuted and earnestly desires to help emancipate us from our bondage.” Richard described Curtis as “utterly fearless” and stated he “has the courage of his convictions to a remarkable degree.”[109]

In his May 24 letter, Richards included evidence of Curtis’s ongoing efforts. He enclosed a draft of a bill that would give the Supreme Court appellate jurisdiction and a letter Curtis had sent to Augustus Hill Garland, a Democrat and the new attorney general. In that letter, Curtis rejected the current construction of cohabitation, which would force Snow to turn his other wives “and their children adrift to the world.” He also described the court’s decision to dismiss Snow’s cases for want of jurisdiction as “the most unprecedented situation in the administration of the criminal law that has occurred since the United States have had any criminal laws.” Yes, he granted, “polygamy must undoubtly be given up by these people,” but he insisted that the Saints are “entitled to have the law interpreted by the highest judicial tribunal of the Government which enacted it.”[110] Curtis continued to pursue this line of argument in subsequent letters to other politicians, including both Republicans and Democrats.[111]

In late June letters to John Randolph Tucker and Patrick Andrew Collins, members of the House Committee on the Judiciary, Curtis addressed the Edmunds-Tucker Act, which had passed in the House but not the Senate. In his letter to Collins, Curtis identified the bill’s failure to carefully define cohabitation and to clearly distinguish between injurious and noninjurious religious actions. He also emphasized the importance of including a provision granting the Supreme Court appellate jurisdiction.[112] In his letter to Tucker, the chair of the committee, Curtis urged consideration of a separate bill to give the court appellate jurisdiction in criminal cases arising under the Edmunds Act. He pressed for swift action, noting that individuals such as Lorenzo Snow sat in the penitentiary due to the Territorial Court’s inhumane construction. Snow and others deserved a “rule of action by which they could definitely regulate the remainder of their lives.” Curtis opined that the failure of “the people and Government of the United States” to address polygamy earlier made them “largely responsible for the state of things . . . in Utah.” He referenced his argument in Dred Scott but noted that “there was no element of a religious nature to complicate the subject.” Curtis believed that religious element demanded that the court “mark out the boundaries which separate the conduct that may, from the conduct that may not be made criminal.”[113]

In late July, Curtis wrote directly to John Taylor, who had recently sent him payment for services rendered.[114] “I am much gratified by your appreciation of my efforts to serve your people,” Curtis stated. He continued, “I do indeed take a strong interest in what concerns their religious and civil rights, but it is a difficult thing to make the people or the public men of this country understand where the line is to be drawn between what the civil power can constitutionally and rightfully do and what it cannot.” Curtis proceeded to ask Taylor whether he and other leaders had thought about journeying beyond the jurisdiction of the United States to maintain “your religious convictions and your civil rights.”[115] In early August, Taylor answered in the negative. He indicated that “our future is indis[s]olubly connected with this land.” Echoing some of Joseph Smith’s revelations and teachings, Taylor explained that the Saints believed the “men who formed the Constitution were inspired of God” and that they would do “all in our power to protest against these wrongs, and to obtain our rights in the court of our Country,” and then trust “in our God for that deliverance.” Taylor continued, “we have expected also that the days would yet come when it would fall to us to uphold the Constitution.” He registered the Saints’ resolve to “contend for our rights as American citizens,” both for themselves and “for humanity, that the principles of civil and religious liberty may be fully maintained in the great American continent.”[116]

Curtis was impressed with Taylor’s response and asked to use it in his argument before the court of public opinion. Curtis informed the Latter-day Saint prophet that he was having trouble finding a newspaper editor who would publish his statements but indicated that he was not unused to dealing with popular prejudice and would not “shrink from any such contest.” Curtis agreed with Taylor that the current measures taken against the Saints made them “the defenders of civil and religious liberty.”[117] In a subsequent letter on the same topic, written in late September, Curtis asked Taylor to not “feel hurt” if in Curtis’s public writings he described “plural marriage” as “an institution that must come to an end.” He explained that he would focus “on the means and methods that we used to break up family ties” and demonstrate that the Saints were forced to “defenses of civil and religious liberty because you are punished for discharging duties that human law can have no right to interdict, under the pretext of punishing you for breaches of a statute constructed for the very purpose of unrighteous persecution.”[118] In private correspondence with the Church president, Curtis was willing to critique the Edmunds Act itself, though he remained focused on what he viewed as its unjust implementation.

In early November, Curtis wrote a public letter to the Democratic Secretary of the Interior Lucius Quintus Cincinnatus Lamar (clearly named during a period in which the classical period still fired the imaginations of many Americans). Curtis wrote in response to recent reports from Governor Caleb Walton West and the Utah Commission, and “on account of the principles of civil and religious liberty.” He used Taylor’s words to indicate the depth of “the religious convictions of these people” and to suggest that “they do no more than many other Christians do who regard the framers of our Constitution as inspired.” He praised the Saints’ resilience in the face of persecution, recalling his words about Catholics as Christians. Curtis challenged a Protestant assumption about the Saints that paralleled their fear of Catholics, dismissing the idea that the Saints privileged the laws of God over human laws. On this point, Curtis referenced his prior confrontations with abolitionists, who advocated the “so-called Higher Law,” and he rejected the idea that the Saints subscribed to a similar notion.

First page of Curtis's July 27, 1886, letter to President Taylor. Courtesy of the Church History Library, Salt Lake City.

First page of President Taylor's august 3, 1886 letter to Curtis. Courtesy of the Church History Library, Salt Lake City.

While Curtis provided historical comparisons, he also asserted that “no public question has arisen in my time on which the general public have so little means for forming safe opinions, as they have on what is called the ‘Mormon question.’” He described the occasion as “the first time that a public question has arisen since the adoption of the first amendment of the Federal Constitution, in which the meaning and operation of the religious liberty guaranteed by that amendment have come into legislative and judicial consideration.” This situation differed from that of the Ursuline Convent and all prior cases dealing with religious freedom, which fell within the purview of local governments. The territorial nature of the case, along with a gradual shift in federalism in the wake of the Fourteenth Amendment, created the conditions in which the Supreme Court had to consider the question of religious freedom. Considering these conditions, Curtis agreed with Taylor’s assessment that the Saints “will be forced to become the champions of civil and religious liberty in this country if there is not a change of policy.”[119]

In Curtis’s letter to Lamar, he repeated much of what he had argued before the Supreme Court and expressed in private letters. He explained the Saints’ beliefs on marriage, Snow’s specific situation, and the problematic construction of cohabitation. Curtis made it clear that he did not question “the power of Congress to prohibit in a Territory . . . the social and civil relation known as polygamy, or plural marriage” and again referenced his argument in Dred Scott. This reference served as a reminder of Curtis’s prominent role in that important decision. Perhaps he wanted to signal that he had been on the right side of history over the issue of slavery in hopes of convincing some readers that time would place him on the right side of history over the issue of polygamy. But Curtis also referenced Dred Scott to avoid claims that he was inconsistent on congressional power. He continued to emphasize that “it is one thing for Congress to have a constitutional power to prohibit a relation, and another thing to apply that power in a way to transcend and violate the constitutional rights of individuals.” Curtis held that the Edmunds Act, under its current construction, violated the First Amendment. He observed that while the law allowed men to live under one roof with multiple women and have intercourse with them, it disallowed polygamous men from caring for their wives. He described this as “the most exquisite reductio ad absurdum that I have met with in my juridical studies.”

While contesting this construction, Curtis also challenged the recommendations of Governor West and the Utah Commission, especially the governor’s call for a standing army. On this point, he again referred to his past experiences. He wrote, “I have seen, in the course of my life, a law of the United States executed in a community where it was exceedingly unpopular, where four-fifths of the people believed it to be unconstitutional, and where many felt it to be an outrage upon their sense of duty to God and their fellow-men.” Curtis had in mind Boston citizens who opposed the Fugitive Slave Law. He suggested that if President Millard Fillmore had “stationed an army on Boston Common,” there would have been “multitudes of men ready to follow the lead of anybody in resisting the process of the Federal tribunals.” Curtis’s experiences with the slavery crisis of antebellum America continued to shape his response to “the Mormon question” of the postbellum era.[120]

Near the conclusion of his public letter, Curtis again urged religious understanding and offered several suggestions to usher polygamy out of existence. He criticized the Utah Commission’s use of the term “fanaticism” to describe the Saints’ belief and asked, “When we once enter upon the policy of discriminating against the religious faith of immigrants who are of the same races as ourselves, where do our statesmen and legislators suppose that we shall stop?” (Curtis may not have known that many commentators had racialized the Saints as non-White[121]) Hoping he had opened the door to less extreme options, Curtis made five suggestions. First, he urged the government to cease prosecuting those who married plural wives before 1862 if they had confined their sexual relations to one wife. Second, he suggested that men who had been convicted of bigamy should “give security that they will confine their sexual relation to one of their wives.” Third, he argued that none of these men should be prosecuted “on account of any association with the plural wives that is not sexual.” Fourth, he argued that Congress should pass legislation to ensure that cohabitation “receive construction by the Supreme Court.” And fifth, he proposed that the Department of Justice should appoint a person as special counsel to “take charge of all prosecutions under the Edmunds act now pending.” Curtis understood that his proposals would likely fail. “My voice may be the voice of one crying in the wilderness,” he noted.[122]

Conclusion

Telegram from Curtis to Richards, notifying him of Snow's mandated release. Courtesy of L .Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University, Provo UT.

Curtis was right. Most of his efforts on behalf of the Church, both in the legal and public realms, proved ineffective. But he and Richards did win one major victory. In their reasoning before the Supreme Court, Richards had focused on the fact that Snow had been charged and convicted for segregated periods of cohabitation. In his April 1886 argument, he had found it “utterly incomprehensible . . . that the same testimony can be used three times to convict a person of three distinct offense.”[123] After the court’s decision to dismiss Snow’s cases, Richards continued to pursue this line of reasoning, and convinced Curtis of its value.[124] Months later, in October 1886, after Snow had served out his first sentence, Richards and Curtis petitioned the district court for a writ of habeas corpus. The court denied the petition. The next month, Richards and Curtis again appealed before the Supreme Court, and this time the court ruled in their favor. In February 1887, after hearing arguments from Curtis and Richards, the court decided that Snow’s cohabitation was continuous and that his crime could not be divided up into segregated periods.[125] On the morning of February 8, a telegram from Curtis arrived in Salt Lake City with these words: “Snow released mandate ordered Thanks to God.”[126] Snow went free, and no Latter-day Saint would have to face the prospect of a lifetime in prison for unlawful cohabitation.[127]

The decision provided polygamists a brief reprieve, but less than a month after Snow was released from prison, the Edmunds-Tucker Act became law. It did not include Curtis’s suggested provision to grant the Supreme Court appellate jurisdiction, nor any of Curtis’s other recommendations. Instead, it included several crippling provisions aimed both at individuals and at the Church itself. Among other things, it required prospective voters, jurors, and public officials to take an antipolygamy oath to uphold the Edmunds Act. In other words, it asked them to betray their religious conscience. Curtis had made a valiant plea, but he had failed to move the needle on religious freedom.[128] In an era when Protestant Americans deemed Latter-day Saint belief beyond the pale, the Saints could not become champions of civil and religious liberty. Sympathy had eroded, despite Curtis’s best efforts.[129]

Curtis’s background, training, and experiences shaped his efforts to defend Snow, the Saints, and the right of religious conscience. A constitutionalism developed at Harvard Law School, a sense of religious understanding nurtured in response to anti-Catholic violence, and a Unionism forged in the fires of the slavery crisis readied Curtis to accept Richards’s invitation. So too did Curtis’s shifting political affinities, which settled along Democratic lines amid the nation’s greatest conflict. In short, Curtis’s defense of the Saints’ freedom of religious conscience emerged from specific religious, legal, and political contexts. His defense also butted up against those contexts. The very forces which drew his defense, including a religious moral majority, partisan-informed legislation, and politically laden legal rulings, constrained the effectiveness of Curtis’s arguments, making him “a voice crying in the wilderness.” All of this demonstrates that religious freedom most often exists not as a disembodied ideal but as a historical concept that takes shape in relationship to shifting historical contexts.

Title page of Curtis's Admission of Utah.

Curtis continued crying out for justice, but he did require payment for his efforts. In an April 1887 letter to Richards, Curtis explained his request for an increase in his annual rate: “I . . . incur a great deal of a certain kind of abuse, and also of misrepresentation. Sometimes this reaches my children through friends who do not understand . . . the general subject, or my professional relations to it, and . . . I have to make efforts to correct the false ideas. So that one who occupies such a position as I do, in serving your people has to encumber what he never has to meet” in situations where “no religious prejudices or religious hatreds are involved.”[130] Curtis’s efforts to cultivate religious understanding came at a cost, both for himself and for the Church.

Curtis kept petitioning on behalf of the Church, including in their push for statehood. He persisted in writing articles and pamphlets in their support.[131] He also penned letters to prominent government officials, including Senator George F. Edmunds and President Grover Cleveland.[132] As late as December of 1893, months before Curtis died, he continued to advocate for Utah statehood. In a letter to the editor of the New York Tribune, he spoke in favor of the latest bill for Utah’s admission, which had passed in the House and would soon reach the Senate. Curtis referenced his “personal acquaintance of ten years with leading Mormons of both sexes, and a correspondence with others,” which, though he had “never been in Utah,” enabled him “to speak with certainty of the great change that has taken place among them in regard to plural marriages.” Curtis explained that his defense of Snow required that he make himself “thoroughly acquainted with the Mormon religion.” Curtis presented his bona fides as an expert on the religion to confirm that “whether the discontinuance of polygamy is due to the legislation or to a change in the sentiments of the Mormons themselves, it has certainly taken place.” Curtis reminded his readers of an observation he had made in earlier writings, stating that “there is no more orderly community on the Continent.” To the end, “order” remained Curtis’s watchword, and he insisted that the Saints would not challenge but instead contribute to the existing order.[133]

Engraving of George Ticknor Curtis, included as the frontispiece to the second volume of his Constitutional History of the United States.

The bill for Utah’s admission did pass, though Curtis’s efforts seem to have had little effect in that outcome. Historical forces outside of his control, which Curtis briefly mentioned in his letter as “legislation,” hastened polygamy’s end among the Saints and paved the path for Utah statehood. These same forces have obscured Curtis’s efforts on behalf of the Saints.

But those Saints took notice of his efforts. In one of Richards’s May 1886 letters to Taylor, written about a month after Curtis first argued on behalf of Snow before the Supreme Court, Richards stated that Curtis’s “labors are in the fullest sense conamore [with love].” Richards found “a Providence in [Curtis’s] employment,” noting, “I sincerely believe that the Lord has a hand in preparing and inclining him to do our work.”[134] However limited Curtis’s success, many of the Utah Saints held him in high esteem for standing “in the inner circle of their feelings and convictions.” As a writer for the Deseret News put it in an 1888 article, the name George Ticknor Curtis “is now almost a household word in Utah.”[135] In the last decade of his long life, Curtis had dedicated himself to the defense of the Saints, and they praised him for his efforts.

Notes

[1] Reynolds v. United States, 98 U.S. 145, 163 (1878).

[2] Harlow Sheidley, Sectional Nationalism: Massachusetts Conservative Leaders and the Transformation of America, 1815–1836 (Boston: Northeastern University Press, 1998).

[3] Marshall Foletta, Coming to Terms with Democracy: Federalist Intellectuals and the Shaping of an American Culture (Charlottesville, VA: University of Virginia Press, 2001).

[4] See Kunal M. Parker, Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism (New York: Cambridge University Press, 2011), 117–218; and Stuart Streichler, Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism (Charlottesville, VA: University of Virginia Press, 2005), 18–22.

[5] George Ticknor Curtis, The True Uses of American Revolutionary History (Boston: John H. Eastburn, 1841), 17.

[6] Curtis, True Uses, 33.

[7] David Sehat, The Myth of American Religious Freedom (New York: Oxford University Press, 2010), 9.

[8] George Ticknor Curtis, A Memoir of Benjamin Robbins Curtis, LL.D. with Some of His Professional and Miscellaneous Writings, ed. Benjamin Robbins Curtis Jr., 2 vols. (Boston: Little, Brown and Co., 1879), 1:5.

[9] Albert J. Von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston (Cambridge, MA: Harvard University Press, 1998), 299–300.

[10] Curtis, Memoir, 6.

[11] Curtis, Memoir, 7–17.

[12] W. M. Buckminster, ed., “Marriages,” in Massachusetts Ploughman and New England Journal of Agriculture, October 26, 1844, 2.

[13] Curtis, Memoir, 42.

[14] Joseph Story, Commentaries on the Constitution of the United States, 3 vols. (Boston: Hilliard, Gray, 1833).

[15] George Ticknor Curtis, History of the Origin, Formation, and Adoption of the Constitution of the United States, 2 vols. (New York: Harper & Brothers, 1854, 1861); and Curtis, Constitutional History of the United States, from the Declaration of Independence to the Close of the Civil War, 2 vols. (New York: Harper & Brothers, 1889, 1896).

[16] Curtis, Memoir, 18.

[17] Curtis, Memoir, 19.

[18] Curtis, Memoir, 19–20.

[19] William Ellery Channing, A Sermon Delivered at the Ordination of the Rev. Jared Sparks (Boston: Hews & Goss, 1819), 23.

[20] Channing, Sermon Delivered, 24.

[21] Channing, 24.

[22] See “The Convent at Charlestown,” Christian Register and Boston Observer, December 10, 1842.

[23] Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833).

[24] Permoli v. New Orleans, 44 U.S. 589 (1845).

[25] See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998).

[26] George Ticknor Curtis, The Rights of Conscience and of Property; or the True Issue of the Convent Question (Boston: Little, Brown, 1842), 6.

[27] Curtis, Rights of Conscience, 25.

[28] Curtis, Rights of Conscience, 7.

[29] On the function of Protestant fears of Catholics in antebellum America, including in New England, see Jenny Franchot, Roads to Rome: The Antebellum Protestant Encounter with Catholicism (Berkeley: University of California Press, 1994).

[30] Curtis, Rights of Conscience, 7, 9.

[31] Curtis, Rights of Conscience, 14.

[32] Curtis, Rights of Conscience, 16.

[33] Curtis, Rights of Conscience, 13.

[34] Curtis, Rights of Conscience, 37, 38.

[35] Curtis, Rights of Conscience, 38.

[36] “The Rights of Conscience and of Property,” Pioneer, January 1843, 45. See also “The Rights of Conscience and of Property,” Christian Examiner and General Review, January 1843, 391–92.

[37] Curtis, Rights of Conscience, 26.

[38] Streichler, Justice Curtis, 25–34.

[39] Curtis, Memoir, 86–87.

[40] Von Frank, Trials of Anthony Burns, 116–17; Streichler, Justice Curtis, 41–44; Earl M. Maltz, Fugitive Slave on Trial: The Anthony Burns Case and Abolitionist Outrage (Lawrence, KS: University Press of Kansas, 2010), 31–34; and R. J. M. Blackett, The Captive’s Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery (New York: Cambridge University Press, 2018), 59–60, 400–409.

[41] Proceedings of the Constitutional Meeting at Faneuil Hall, November 26th, 1850 (Boston: Beals & Greene, 1850), 9.

[42] Proceedings of the Constitutional Meeting, 16.

[43] On Curtis’s speech, see Streichler, Justice Curtis, 45–52. See also Jordan T. Watkins, Slavery and Sacred Texts: The Bible, the Constitution, and Historical Consciousness in Antebellum America (New York: Cambridge University Press, 2021), 207–12. On the prevalence of this view of the Constitution, see William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977).

[44] Maltz, Fugitive Slave on Trial, 34–47; and Blackett, Captive's Quest for Freedom, 59–60, 410–17.

[45] Theodore Parker, The Trial of Theodore Parker, for the “Misdemeanor” of a Speech in Faneuil Hall against Kidnapping (Boston, 1855). See also Von Frank, Trials of Anthony Burns, 297–300.

[46] Theodore Parker, The New Crime against Humanity: A Sermon (Boston: Mussey & Co., 1854), 30.

[47] Theodore Parker, New Crime, 36.

[48] Theodore Parker, New Crime, 41–42.

[49] Ezra Stiles Gannett, Relation of the North to Slavery. A Discourse Preached in the Federal Street Meetinghouse, in Boston, on Sunday, June 11, 1854 (Boston: Crosby, Nichols & Co., 1854), 5, 7.

[50] Gannett, Relation of the North, 14.

[51] Gannett, 18.

[52] Von Frank, Trials of Anthony Burns, 270–76.

[53] George Ticknor Curtis, Observations on the Rev. Dr. Gannett's Sermon, Entitled “Relation of the North to Slavery” (Boston: Redding and Co., 1854), 28.

[54] Curtis, Memoir, 240–41.

[55] On the politics of the case, including the court’s change in approach and the response to the decision, see David M. Potter, The Impending Crisis: America before the Civil War, ed. Don E. Fehrenbacher, reprint ed. (New York: Harper Perennial, 2011); 272–74, 287–89; Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 305–14; and Ethan Greenberg, Dred Scott and the Dangers of a Political Court (Lanham, MD: Lexington Books, 2009), 65–85.

[56] In a letter to George Ticknor, Benjamin Curtis wrote that his brother had argued “in a manner exceedingly creditable to himself and to the bar of New England.” Curtis, Memoir, 194.

[57] On the use of historical argumentation in the Dred Scott decision, including the dissenting opinions and popular response, see Watkins, Slavery and Sacred Texts, 229–61. On Curtis’s opinion, see Streichler, Justice Curtis, 119–51.

[58] Dred Scott v. Sandford, 60 U.S. (19 Howard) 393, 620–21 (1857).

[59] Curtis, Memoir, 151–52.

[60] George Ticknor Curtis, The Just Supremacy of Congress over the Territories (Boston: Williams, 1859), 8.

[61] Curtis, Just Supremacy, 23.

[62] Curtis, Just Supremacy, 5.

[63] Curtis, Just Supremacy, 20.

[64] Curtis, Just Supremacy, 33.

[65] Curtis, Just Supremacy, 42. Fehrenbacher suggests that despite some distinctions in the justices’ opinions, “none of the major rulings in Taney’s opinion can be pushed aside as unauthoritative.” Dred Scott Case, 333.

[66] Curtis, Memoir, 195.

[67] B. R. Curtis, Executive Power (Boston: Little, Brown, 1862), 9.

[68] Curtis, Executive Power, 16.

[69] On George Curtis’s political evolution, see Richard Frank Calhoun, “George Ticknor Curtis: Nineteenth-Century Constitutional Historian and Publicist” (PhD diss., University of Maryland at College Park, 2001). On Benjamin Curtis’s views during this period, see Streichler, Justice Curtis, 157–97.

[70] George Ticknor Curtis, Life of Daniel Webster, 2 vols. (New York: D. Appleton, 1870); and Curtis, Life of James Buchanan, 2 vols. (New York: Harper and Brothers, 1883). On Curtis’s work and writings during this period, see Calhoun, “George Ticknor Curtis,” 188–261.

[71] Curtis, Life of James Buchanan, 2:211.

[72] “Abusing the Mormons,” New York World, October 31, 1871.

[73] Utah Commission, The Edmunds Act, Reports of the Commission, Rules, Regulations and Decisions (Salt Lake City: Tribune Printing and Publishing, 1883), 3–5.

[74] Dennis B. Horne, Latter Leaves in the Life of Lorenzo Snow (Springville, UT: Cedar Fort, 2012), 121.

[75] For the Utah Territorial Supreme Court’s opinions, see Reports of Cases Determined in the Supreme Court of the Territory of Utah, vol. 4 (Salt Lake City: Tribune Printing and Publishing, 1890), 280–291, 295–326.

[76] Richard Neitzel Holzapfel and Andrew H. Hedges, Within These Prison Walls: Lorenzo Snow's Record Book, 1886–1897 (Provo, UT: Religious Studies Center, Brigham Young University, 2010), xvii–xxxvi. See also Horne, Latter Leaves, 99–134.

[77] Chauncey F. Black to Franklin S. Richards, March 23, 1886, in Franklin S. Richards Papers, L. Tom Perry Special Collections, Provo, UT (hereafter Richards Papers); emphasis in original.

[78] Black and Gibson apparently remained supportive of the Latter-day Saints because Wilford Woodruff and George Q. Cannon instructed Joseph F. Smith on “settling with” and paying them in an 1888 letter. Wilford Woodruff and George Q. Cannon to Joseph F. Smith, March 13, 1888, in the Wilford Woodruff Papers.

[79] George Ticknor Curtis to Chief Justice of the US Supreme Court, May 3, 1886, in First Presidency (John Taylor) Correspondence, 1877–1887, Church History Library, Salt Lake City (hereafter First Presidency Correspondence).

[80] George Ticknor Curtis and Franklin S. Richards, Pleas for Religious Liberty and the Rights of Conscience. Arguments Delivered in the Supreme Court of the United States (Washington, DC, 1886), 5.

[81] Reynolds v. United States, 98 U.S. 145, 162 (1878).

[82] Reynolds v. United States, 98 U.S. 145, 163 (1878).

[83] On the Reynolds decision, see Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002), 119–45.

[84] Curtis and Richards, Pleas for Religious Liberty, 13.

[85] Curtis and Richards, Pleas for Religious Liberty, 16.

[86] Curtis and Richards, Pleas for Religious Liberty, 13.

[87] Curtis and Richards, Pleas for Religious Liberty, 9; emphasis in original.

[88] Curtis and Richards, Pleas for Religious Liberty, 14–15.

[89] Curtis and Richards, Pleas for Religious Liberty, 24.

[90] Cannon v. United States, 116 U.S. 55, 72 (1885).

[91] Curtis and Richards, Pleas for Religious Liberty, 26; emphasis in original.

[92] Curtis and Richards, Pleas for Religious Liberty, 28.

[93] Curtis and Richards, Pleas for Religious Liberty, 29.

[94] Curtis and Richards, Pleas for Religious Liberty, 28; emphasis in original.

[95] Curtis and Richards, Pleas for Religious Liberty, 29; emphasis in original.

[96] Curtis and Richards, Pleas for Religious Liberty, 30.

[97] Curtis and Richards, Pleas for Religious Liberty, 34.

[98] Curtis and Richards, Pleas for Religious Liberty, 36.

[99] Curtis and Richards, Pleas for Religious Liberty, 30, 31.

[100] Curtis and Richards, Pleas for Religious Liberty, 32.

[101] Curtis and Richards, Pleas for Religious Liberty, 37.

[102] Curtis and Richards, Pleas for Religious Liberty, 41–42.

[103] Curtis and Richards, Pleas for Religious Liberty, 42.

[104] On the Saints’ response, see, for example, “The Snow Case,” Salt Lake Herald, April 29, 1886; “Washington Jottings,” Woman’s Exponent, May 1886, 178; “A Review of George Ticknor Curtis’ Masterly Argument,” Ogden Herald, May 24, 1886; and “The Jurisdiction Question,” Deseret News, June 2, 1886.

[105] A note from Daniel S. Lamont, President Grover Cleveland’s secretary, indicates that Curtis met with the president on this same day, though the purpose of his visit remains unclear. The note is included in the Richards Papers.

[106] Curtis to Chief Justice, May 3, 1886.

[107] Snow v. United States, 118 U.S. 346 (1886).

[108] Franklin S. Richards to John Taylor and George Q. Cannon, May 24, 1886, in First Presidency Correspondence. 1877–1887.

[109] Franklin S. Richards to John Taylor and George Q. Cannon, May 25, 1886, in First Presidency Correspondence.

[110] George Ticknor Curtis to August Hill Garland, May 17, 1886, enclosed in Richards to Taylor and Cannon, May 24, 1886.

[111] For an example of a letter to a Republican, see George Ticknor Curtis to William M. Evarts, May 29, 1886, in Richards Papers.

[112] George Ticknor Curtis to Patrick Andrew Collins, June 22, 1886, enclosed in Franklin S. Richards to John Taylor, June 28, 1886, in First Presidency Correspondence. See also Extract from George Ticknor Curtis to John T. Caine, in Richards to Taylor, June 28, 1886.

[113] George Ticknor Curtis to John Randolph Tucker, June 25, 1886, in First Presidency Correspondence.

[114] On the financial arrangement, see also Franklin S. Richards to John Taylor, June 28, 1886, in First Presidency Correspondence.

[115] George Ticknor Curtis to John Taylor, July 27, 1886, in First Presidency Correspondence.

[116] John Taylor to George Ticknor Curtis, August 3, 1886, in First Presidency Correspondence. On Smith’s revelations and teachings, see, for example, “Revelation,” December 16–17, 1833 [D&C 101], in Gerrit J. Dirkmaat, Brent M. Rogers, Grant Underwood, Robert J. Woodford, and William G. Hartley, eds., Documents, Volume 3: February 1833–March 1834, vol. 3 of the Documents series of The Joseph Smith Papers, ed. Ronald K. Esplin and Matthew J. Grow (Salt Lake City: Church Historian’s Press, 2014), 386–397; and Joseph Smith, “Discourse,” ca. July 19, 1840, in Matthew C. Godfrey, Spencer W. McBride, Alex D. Smith, and Christopher James Blythe, eds., Documents, Volume 7: September 1839–January 1841, vol. 7 of the Documents series of The Joseph Smith Papers, ed. Esplin, Grow, and Godfrey (Salt Lake City: Church Historian’s Press, 2018), 333–45.

[117] George Ticknor Curtis to John Taylor, August 11, 1886, in First Presidency Correspondence.

[118] George Ticknor Curtis to John Taylor, September 29, 1886, in First Presidency Correspondence; emphasis in original.

[119] George Ticknor Curtis, “Letter to the Secretary of the Interior on the Affairs of Utah, Polygamy, ‘Cohabitation,’ Etc.,” Deseret News, December 1, 1886. See also Letter to the Secretary of the Interior on the Affairs of Utah, Polygamy, ‘Cohabitation,’ &c. (Washington, DC: Gibson Bros., 1886).

[120] Curtis, “Letter to the Secretary.”

[121] W. Paul Reeve, Religion of A Different Color: Race and the Mormon Struggle for Whiteness (New York: Oxford University Press, 2015).

[122] Curtis, “Letter to the Secretary.”

[123] Curtis and Richards, Pleas for Religious Liberty, 52.

[124] Richards, “Address Delivered by President Franklin S. Richards to the High Priests Quorum of Ensign Stake,” Church History Library, Salt Lake City.

[125] For Curtis’s and Richards’s arguments, see Curtis and Richards, Brief for Appellant: Ex Parte: In the matter of Lorenzo Snow, Supreme Court of the United States (Washington, DC, 1887). The publication of these arguments, as with Curtis’s and Richards’s prior arguments, may have been part of Curtis’s public opinion effort, though the publications might also indicate Curtis’s high estimation of his legal reasoning.

[126] Curtis’s telegram is included in the Richards Papers.

[127] Holzapfel and Hedges, Within These Prison Walls, xlvii–l. See also Horne, Latter Leaves, 176–81.

[128] On the limited nature of religious freedom as it related to these polygamy cases, see Sehat, Myth of American Religious Freedom, 168–72; John Witte Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment, 4th ed. (New York: Oxford University Press, 2016), 126–29; and Steven Waldman, Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom (New York: HarperOne, 2019), 97–117.

[129] Gordon, Mormon Question, 147–81.

[130] George Ticknor Curtis to Franklin S. Richards, April 4, 1887, enclosed in Franklin S. Richards to John Taylor, April 11, 1887, in First Presidency Correspondence.

[131] See, for example, George Ticknor Curtis, Admission of Utah: Limitation of State Sovereignty by Compact with the United States: An Opinion given by George Ticknor Curtis (New York, 1887); and “Shall Utah Become a State?” Forum 4 (November 1887): 290–98. On Curtis’s involvement in advocating for statehood, see Edward Leo Lyman, Political Deliverance: The Mormon Quest for Utah Statehood (Urbana: University of Illinois Press, 1986), 69–71, 84.

[132] George Ticknor Curtis to George F. Edmunds, August 8, 1887, in Richards Papers; and George Ticknor Curtis to the President, July 28, 1887, in Richards Papers.

[133] “The Admission of Utah,” New York Tribune, December 29, 1893.

[134] Franklin S. Richards to John Taylor and George Q. Cannon, May 25, 1886, in First Presidency Correspondence.

[135] “Worthy the Study of Statements and Philosophers,” Deseret News, February 1, 1888.