U.S. Supreme Court Reynolds v. United States, 98 U.S.
145 (1878) Reynolds v. United
States 98 U.S.
145 ERROR TO THE SUPREME COURT OF THE
TERRITORY OF UTAH Syllabus 1. Sect. 808 of the Revised Statutes, providing for impaneling
grand juries and prescribing the number of which they shall
consist, applies only to the Circuit and the District Courts of the
United States. An indictment for bigamy under sect. 5352 may,
therefore, be found in a district court of Utah, by a grand jury of
fifteen persons, impaneled pursuant to the laws of that
Territory.

															2. A petit juror in a criminal case testified on his voire
dire that he believed that he had formed an opinion, although
not upon evidence produced in court, as to the guilt or innocence
of the prisoner, but that he had not expressed it, and did not
think that it would influence his verdict. He was thereupon
challenged by the prisoner for cause. The court overruled the
challenge. Held, that its action was not erroneous.

															3. Where it is apparent from the record that the challenge of a
petit juror, if it had been made by the United States for favor,
should have been sustained, the judgment against the prisoner will
not be reversed simply because the challenge was in form for
cause.

															4. Although the Constitution declares that, in all criminal
prosecutions, the accused shall enjoy the right to be confronted
with the witnesses against him, yet, if they are absent by his
procurement, or when enough has been proved to cast upon him the
burden of showing, and he, having full opportunity therefor, fails
to show that he has not been instrumental in concealing them or in
keeping them away, he is in no condition to assert that his
constitutional right has been violated by allowing competent
evidence of the testimony which they gave on a previous trial
between the United States and him upon the same issue. Such
evidence is admissible.

															5. Said sect. 5352 is in all respects constitutional and
valid.

															6. The scope and meaning of the first article of the amendments
to the Constitution discussed.

															7. A party's religious belief cannot be accepted as a
justification for his committing an overt act, made criminal by the
law of the land. Where, therefore, the prisoner, knowing that his
wife was living, married again in Utah, and, when indicted and
tried therefor, set up that the church whereto he belonged enjoined
upon its male members to practise polygamy, and that he, with the
sanction of the recognized authorities of the church, and by a
ceremony performed pursuant to its doctrines, did marry again -- held, that the court properly refused to charge the jury
that he was entitled to an acquittal although they should find that
he had contracted such second marriage pursuant to, and in
conformity with, what he believed at the time to be a religious
duty.

															8. The court told the jury to

															"consider what are to be the consequences to the innocent
victims of this delusion [the doctrine of polygamy]. As this
contest goes on, they multiply, and there are pure-minded women and
there are innocent children -- innocent in a sense even beyond the
degree of the innocence of childhood itself. These are to be the
sufferers; and as jurors fail to do their duty, and as these cases
come up in the Territory of Utah, just so do these victims multiply
and spread themselves over the land." Held, that the charge was not improper. Page 98 U. S. 146 This is an indictment found in the District Court for the third
judicial district of the Territory of Utah, charging George
Reynolds with bigamy, in violation of sect. 5352 of the Revised
Statutes, which, omitting its exceptions, is as follows:

															"Every person having a husband or wife living, who marries
another, whether married or single, in a Territory, or other place
over which the United States have exclusive jurisdiction, is guilty
of bigamy, and shall be punished by a fine of not more than $500,
and by imprisonment for a term of not more than five years."

															The prisoner pleaded in abatement that the indictment was not
found by a legal grand jury, because fifteen persons, and no more,
were impaneled and sworn to serve as a grand jury at the term of
the court during which the indictment was found, whereas sect. 808
of the Revised Statutes of the United States enacts that every
grand jury impaneled before any District or Circuit Court shall
consist of not less than sixteen persons.

															An act of the legislature of Utah of Feb. 18, 1870, provides
that the court shall impanel fifteen men to serve as a grand jury.
Compiled Laws of Utah, ed. of 1876, p. 357, sect. 4.

															The court overruled the plea, on the ground that the territorial
enactment governed.

															The prisoner then pleaded not guilty. Several jurors were
examined on their voire dire by the district attorney.
Among them was Eli Ransohoff, who, in answer to the question, "Have
you formed or expressed an opinion as to the guilt or innocence of
the prisoner at the bar?" said, "I have expressed an opinion by
reading the papers with the reports of the trial."

															Q. "Would that opinion influence your verdict in hearing the
evidence?"

															A. "I don't think it would."

															By the defendant: "You stated that you had formed some opinion
by reading the reports of the previous trial?"

															"Yes."

															Q. "Is that an impression which still remains upon your
mind?" Page 98 U. S. 147 A. "No; I don't think it does; I only glanced over it, as
everybody else does."

															Q. "Do you think you could try the case wholly uninfluenced by
anything?"

															A. "Yes."

															Charles Read, called as a juror, was asked by the district
attorney, "Have you formed or expressed any opinion as to the guilt
or innocence of this charge?"

															A. "I believe I have formed an opinion."

															By the court: "Have you formed and expressed an opinion?"

															A. "No, sir; I believe not."

															Q. "You say you have formed an opinion?"

															A. "I have."

															Q. "Is that based upon evidence?"

															A. "Nothing produced in court."

															Q. "Would that opinion influence your verdict?"

															A. "I don't think it would."

															By defendant: "I understood you to say that you had formed an
opinion, but not expressed it."

															A. "I don't know that I have expressed an opinion; I have formed
one."

															Q. "Do you now entertain that opinion?"

															A. "I do."

															The defendant challenged each of these jurors for cause. The
court overruled the challenge, and permitted them to be sworn. The
defendant excepted.

															The court also, when Homer Brown was called as a juror, allowed
the district attorney to ask him the following questions: Q. "Are
you living in polygamy?" A. "I would rather not answer that." The
court instructed the witness that he must answer the question,
unless it would criminate him. By the district attorney: "You
understand the conditions upon which you refuse?" A. "Yes, sir." Q.
"Have you such an opinion that you could not find a verdict for the
commission of that crime?" A. "I have no opinion on it in this
particular case. I think, under the evidence and the law, I could
render a verdict accordingly." Whereupon the United States
challenged the said Brown for favor, which challenge was sustained
by the court, and the defendant excepted. Page 98 U. S. 148 John W. Snell, also a juror, was asked by the district attorney
on voire dire : Q. "Are you living in polygamy?" A. "I
decline to answer that question." Q. "On what ground?" A. "It might
criminate myself; but I am only a fornicator." Whereupon Snell was
challenged by the United States for cause, which challenge was
sustained, and the defendant excepted.

															After the trial commenced, the district attorney, after proving
that the defendant had been married on a certain day to Mary Ann
Tuddenham, offered to prove his subsequent marriage to one Amelia
Jane Schofield during the lifetime of said Mary. He thereupon
called one Pratt, the deputy marshal, and showed him a subpoena for
witnesses in this case, and among other names thereon was the name
of Mary Jane Schobold, but no such name as Amelia Jane Schofield.
He testified that this subpoena was placed in his hands to be
served.

															Q. "Did you see Mr. Reynolds when you went to see Miss
Schofield?"

															A. "Yes, sir."

															Q. "Who did you inquire for?"

															A. "I inquired for Mary Jane Schofield, to the best of my
knowledge. I will state this, that I inserted the name in the
subpoena, and intended it for the name of the woman examined in
this case at the former term of the court, and inquired for Mary
Jane Schofield, or Mrs. Reynolds, I do not recollect certainly
which."

															Q. "State the reply."

															A. "He said she was not at home."

															Q. "Did he say anything further."

															A. "I asked him then where I could find her. I said, "Where is
she? And he said, "You will have to find out."

															Q. "Did he know you to be a deputy marshal?"

															A. "Yes, sir."

															Q. "Did you tell him what your business was as deputy
marshal?"

															A. "I don't remember now; I don't think I did."

															Q. "What else did he say?" Page 98 U. S. 149 A. "He said, just as I was leaving, as I understood it, that she
did not appear in this case."

															The court then ordered a subpoena to issue for Amelia Jane
Schofield, returnable instanter.

															Upon the following day, at ten o'clock A.M., the said subpoena
for the said witness having issued about nine o'clock P.M. of the
day before, the said Arthur Pratt was again called upon, and
testified as follows:

															Q. (By district attorney.) "State whether you are the officer
that had subpoena in your hands." (Exhibiting subpoena last issued,
as above set forth.)

															A. "Yes, sir."

															Q. "State to the court what efforts you have made to serve
it."

															A. "I went to the residence of Mr. Reynolds, and a lady was
there, his first wife, and she told me that this woman was not
there; that that was the only home that she had, but that she
hadn't been there for two or three weeks. I went again this
morning, and she was not there."

															Q. "Do you know anything about her home -- where she
resides?"

															A. "I know where I found her before."

															Q. "Where?"

															A. "At the same place."

															Q. "You are the deputy marshal that executed the process of the
court?"

															A. "Yes, sir."

															Q. "Repeat what Mr. Reynolds said to you when you went with the
former subpoena introduced last evening."

															A. "I will state that I put her name on the subpoena myself. I
know the party, and am well acquainted with her, and I intended it
for the same party that I subpoenaed before in this case. He said
that she was not in, and that I could get a search warrant if I
wanted to search the house. I said, "Will you tell me where she
is?" He said, "No; that will be for you to find out." He said, just
as I was leaving the house -- I don't remember exactly what it was,
but my best recollection is that he said she would not appear in
this case." Page 98 U. S. 150 Q. "Can't you state that more particularly?"

															A. "I can't give you the exact words, but I can say that was the
purport of them."

															Q. "Give the words as nearly as you can."

															A. "Just as I said, I think those were his words."

															The district attorney then offered to prove what Amelia Jane
Schofield had testified to on a trial of another indictment
charging the prisoner with bigamy in marrying her, to which the
prisoner objected on the ground that a sufficient foundation had
not been laid for the introduction of the evidence.

															A. S. Patterson, having been sworn, read, and other witnesses
stated, said Amelia's testimony on the former trial tending to show
her marriage with the defendant. The defendant excepted to the
admission of the evidence.

															The court, in summing up to the jury, declined to instruct them,
as requested by the prisoner, that if they found that he had
married in pursuance of and conformity with what he believed at the
time to be a religious duty, their verdict should be "not guilty,"
but instructed them that if he, under the influence of a religious
belief that it was right, had

															"deliberately married a second time, having a first wife living,
the want of consciousness of evil intent -- the want of
understanding on his part that he was committing crime -- did not
excuse him, but the law inexorably, in such cases, implies criminal
intent."

															The court also said:

															"I think it not improper, in the discharge of your duties in
this case, that you should consider what are to be the consequences
to the innocent victims of this delusion. As this contest goes on,
they multiply, and there are pure-minded women and there are
innocent children -- innocent in a sense even beyond the degree of
the innocence of childhood itself. These are to be the sufferers;
and as jurors fail to do their duty, and as these cases come up in
the Territory, just so do these victims multiply and spread
themselves over the land."

															To the refusal of the court to charge as requested, and to the
charge as given, the prisoner excepted. The jury found him guilty,
as charged in the indictment, and the judgment that he be
imprisoned at hard labor for a term of two years, and pay Page 98 U. S. 151 a fine of $500, rendered by the District Court, having been
affirmed by the Supreme Court of the Territory, he sued out this
writ of error.

															The assignments of error are set out in the opinion of the
court. Page 98 U. S. 153 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

															The assignments of error, when grouped, present the following
questions:

															1. Was the indictment bad because found by a grand jury of less
than sixteen persons?

															2. Were the challenges of certain petit jurors by the accused
improperly overruled?

															3. Were the challenges of certain other jurors by the government
improperly sustained?

															4. Was the testimony of Amelia Jane Schofield, given at a former
trial for the same offence, but under another indictment,
improperly admitted in evidence?

															5. Should the accused have been acquitted if he married the
second time, because he believed it to be his religious duty?

															6. Did the court err in that part of the charge which directed
the attention of the jury to the consequences of polygamy?

															These questions will be considered in their order.

															1. As to the grand jury.

															The indictment was found in the District Court of the third
judicial district of the Territory. The act of Congress "in
relation to courts and judicial officers in the Territory of Utah,"
approved June 23, 1874 (18 Stat. 253), while regulating the
qualifications of jurors in the Territory and prescribing the mode
of preparing the lists from which grand and petit jurors are to be
drawn, as well as the manner of drawing, makes no provision in
respect to the number of persons of which a grand jury shall
consist. Sect. 808, Revised Statutes, requires that a grand jury
impaneled before any district or circuit court of the United States
shall consist of not less than sixteen nor more than twenty-three
persons, while a statute of the Territory limits the number in the
district courts of the Territory Page 98 U. S. 154 to fifteen. Comp.Laws Utah, 1876, 357. The grand jury which
found this indictment consisted of only fifteen persons, and the
question to be determined is whether the section of the Revised
Statutes referred to or the statute of the Territory governs the
case.

															By sect. 1910 of the Revised Statutes, the district courts of
the Territory have the same jurisdiction in all cases arising under
the Constitution and laws of the United States as is vested in the
circuit and district courts of the United States; but this does not
make them circuit and district courts of the United States. We have
often so decided. American Insurance Co. v.
Canter , 1 Pet. 511; Benner et
al. v. Porter , 9 How. 235; Clinton v.
Englebrecht , 13 Wall. 434. They are courts of the
Territories, invested for some purposes with the powers of the
courts of the United States. Writs of error and appeals lie from
them to the Supreme Court of the Territory, and from that court as
a territorial court to this in some cases.

															Sect. 808 was not designed to regulate the impaneling of grand
juries in all courts where offenders against the laws of the United
States could be tried, but only in the circuit and district courts.
This leaves the territorial courts free to act in obedience to the
requirements of the territorial laws in force for the time being. Clinton v. Englebrecht, supra; 85 U. S. Toombs, 18 Wall. 648. As Congress may at any time assume
control of the matter, there is but little danger to be anticipated
from improvident territorial legislation in this particular. We are
therefore of the opinion that the court below no more erred in
sustaining this indictment than it did at a former term, at the
instance of this same plaintiff in error, in adjudging another bad
which was found against him for the same offence by a grand jury
composed of twenty-three persons. 1 Utah 226.

															2. As to the challenges by the accused.

															By the Constitution of the United States (Amend. VI.), the
accused was entitled to a trial by an impartial jury. A juror to be
impartial must, to use the language of Lord Coke, "be indifferent
as he stands unsworn." Co. Litt. 155 b . Lord Coke also says
that a principal cause of challenge is

															"so called because, if it be found true, it standeth sufficient
of itself, without Page 98 U. S. 155 leaving anything to the conscience or discretion of the
triers"

															( id., 156 b ); or, as stated in Bacon's
Abridgment, "it is grounded on such a manifest presumption of
partiality that, if found to be true, it unquestionably sets aside
the . . . juror." Bac.Abr., tit. Juries, E.1.

															"If the truth of the matter alleged is admitted, the law
pronounces the judgment; but if denied, it must be made out by
proof to the satisfaction of the court or the triers." Id., E.12. To make out the existence of the fact, the
juror who is challenged may be examined on his voire dire, and asked any questions that do not tend to his infamy or
disgrace.

															All of the challenges by the accused were for principal cause.
It is good ground for such a challenge that a juror has formed an
opinion as to the issue to be tried. The courts are not agreed as
to the knowledge upon which the opinion must rest in order to
render the juror incompetent, or whether the opinion must be
accompanied by malice or ill will; but all unite in holding that it
must be founded on some evidence, and be more than a mere
impression. Some say it must be positive (Gabbet, Criminal Law,
391); others, that it must be decided and substantial (Armistead's
Case, 11 Leigh (Va.) 659; Wormley's Case, 10 Gratt. (Va.)
658; Neely v. The People, 13 Ill. 685); others, fixed
( State v. Benton, 2 Dev. & B. (N.C.) L. 196); and
still others deliberate and settled ( Staup v.
Commonwealth, 74 Pa.St. 458; Curley v. Commonwealth, 84 id. 151). All concede, however, that, if hypothetical
only, the partiality is not so manifest as to necessarily set the
juror aside. Mr. Chief Justice Marshall, in Burr's Trial (1 Burr's
Trial 416), states the rule to be that

															"light impressions, which may fairly be presumed to yield to the
testimony that may be offered, which may leave the mind open to a
fair consideration of the testimony, constitute no sufficient
objection to a juror, but that those strong and deep impressions
which close the mind against the testimony that may be offered in
opposition to them, which will combat that testimony and resist its
force, do constitute a sufficient objection to him."

															The theory of the law is that a juror who has formed an opinion
cannot be impartial. Every opinion which he may entertain need not
necessarily have that effect. In these days of newspaper enterprise
and universal education, every case of public interest is almost,
as a matter of necessity, Page 98 U. S. 156 brought to the attention of all the intelligent people in the
vicinity, and scarcely anyone can be found among those best fitted
for jurors who has not read or heard of it, and who has not some
impression or some opinion in respect to its merits. It is clear,
therefore, that upon the trial of the issue of fact raised by a
challenge for such cause, the court will practically be called upon
to determine whether the nature and strength of the opinion formed
are such as in law necessarily to raise the presumption of
partiality. The question thus presented is one of mixed law and
fact, and to be tried, as far as the facts are concerned, like any
other issue of that character, upon the evidence. The finding of
the trial court upon that issue ought not to be set aside by a
reviewing court, unless the error is manifest. No less stringent
rules should be applied by the reviewing court in such a case than
those which govern in the consideration of motions for new trial
because the verdict is against the evidence. It must be made
clearly to appear that upon the evidence the court ought to have
found the juror had formed such an opinion that he could not, in
law, be deemed impartial. The case must be one in which it is
manifest the law left nothing to the "conscience or discretion" of
the court.

															The challenge in this case most relied upon in the argument here
is that of Charles Read. He was sworn on his voire dire, and his evidence,{1} taken as a whole, shows that he "believed" he
had formed an opinion which he had never expressed, but which he
did not think would influence his verdict on hearing the testimony.
We cannot think this is such a manifestation of partiality as to
leave nothing to the "conscience or discretion" of the triers. The
reading of the evidence leaves the impression that the juror had
some hypothetical opinion about the case, but it falls far short of
raising a manifest presumption of partiality. In considering such
questions in a reviewing court, we ought not to be unmindful of the
fact we have so often observed in our experience, that jurors not
unfrequently seek to excuse themselves on the ground of having
formed an opinion, when, on examination, it turns out that no real
disqualification exists. In such cases, the manner of the Page 98 U. S. 157 juror while testifying is oftentimes more indicative of the real
character of his opinion than his words. That is seen below, but
cannot always be spread upon the record. Care should, therefore, be
taken in the reviewing court not to reverse the ruling below upon
such a question of fact, except in a clear case. The affirmative of
the issue is upon the challenger. Unless he shows the actual
existence of such an opinion in the mind of the juror as will raise
the presumption of partiality, the juror need not necessarily be
set aside, and it will not be error in the court to refuse to do
so. Such a case, in our opinion, was not made out upon the
challenge of Read. The fact that he had not expressed his opinion
is important only as tending to show that he had not formed one
which disqualified him. If a positive and decided opinion had been
formed, he would have been incompetent even though it had not been
expressed. Under these circumstances, it is unnecessary to consider
the case of Ransohoff, for it was confessedly not as strong as that
of Read.

															3. As to the challenges by the government.

															The questions raised upon these assignments of error are not
whether the district attorney should have been permitted to
interrogate the jurors while under examination upon their voire
dire as to the fact of their living in polygamy. No objection
was made below to the questions, but only to the ruling of the
court upon the challenges after the testimony taken in answer to
the questions was in. From the testimony, it is apparent that all
the jurors to whom the challenges related were or had been living
in polygamy. It needs no argument to show that such a jury could
not have gone into the box entirely free from bias and prejudice,
and that, if the challenge was not good for principal cause, it was
for favor. A judgment will not be reversed simply because a
challenge good for favor was sustained in form for cause. As the
jurors were incompetent and properly excluded, it matters not here
upon what form of challenge they were set aside. In one case, the
challenge was for favor. In the courts of the United States, all
challenges are tried by the court without the aid of triers
(Rev.Stat. sect. 819), and we are not advised that the practice in
the territorial courts of Utah is different. Page 98 U. S. 158 4. As to the admission of evidence to prove what was sworn to by
Amelia Jane Schofield on a former trial of the accused for the same
offence but under a different indictment.

															The Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him; but if a
witness is absent by his own wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place of
that which he has kept away. The Constitution does not guarantee an
accused person against the legitimate consequences of his own
wrongful acts. It grants him the privilege of being confronted with
the witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If, therefore,
when absent by his procurement, their evidence is supplied in some
lawful way, he is in no condition to assert that his constitutional
rights have been violated.

															In Lord Morley's Case (6 State Trials, 770), as long
ago as the year 1666, it was resolved in the House of Lords

															"that, in case oath should be made that any witness, who had
been examined by the coroner and was then absent, was detained by
the means or procurement of the prisoner, and the opinion of the
judges asked whether such examination might be read, we should
answer, that, if their lordships were satisfied by the evidence
they had heard that the witness was detained by means or
procurement of the prisoner, then the examination might be read;
but whether he was detained by means or procurement of the prisoner
was matter of fact, of which we were not the judges, but their
lordships."

															This resolution was followed in Harrison's Case (12 id. 851), and seems to have been recognized as the law in
England ever since. In Regina v. Scaife (17 Ad. &
El.N.S. 242), all the judges agreed that, if the prisoner had
resorted to a contrivance to keep a witness out of the way, the
deposition of the witness, taken before a magistrate and in the
presence of the prisoner, might be read. Other cases to the same
effect are to be found, and in this country the ruling has been in
the same way. Drayton v. Wells, 1 Nott & M. (S.C.)
409; Williams v. The State, 19 Ga. 403. So that now, in
the leading textbooks, it is laid down that, if a witness is kept
away by the adverse party, Page 98 U. S. 159 his testimony, taken on a former trial between the same parties
upon the same issues, may be given in evidence. 1 Greenl.Evid.,
sect. 163; 1 Taylor, Evid., sect. 446. Mr. Wharton (1 Whart.Evid.,
sect. 178) seemingly limits the rule somewhat, and confines it to
cases where the witness has been corruptly kept away by the party
against whom he is to be called, but in reality his statement is
the same as that of the others; for in all it is implied that the
witness must have been wrongfully kept away. The rule has its
foundation in the maxim that no one shall be permitted to take
advantage of his own wrong, and, consequently, if there has not
been, in legal contemplation, a wrong committed, the way has not
been opened for the introduction of the testimony. We are content
with this long-established usage, which, so far as we have been
able to discover, has rarely been departed from. It is the
outgrowth of a maxim based on the principles of common honesty,
and, if properly administered, can harm no one.

															Such being the rule, the question becomes practically one of
fact, to be settled as a preliminary to the admission of secondary
evidence. In this respect, it is like the preliminary question of
the proof of loss of a written instrument, before secondary
evidence of the contents of the instrument can be admitted. In Lord Morley's Case ( supra ), it would seem to have
been considered a question for the trial court alone, and not
subject to review on error or appeal; but without deeming it
necessary in this case to go so far as that, we have no hesitation
in saying that the finding of the court below is, at least, to have
the effect of a verdict of a jury upon a question of fact, and
should not be disturbed unless the error is manifest.

															The testimony shows that the absent witness was the alleged
second wife of the accused; that she had testified on a former
trial for the same offence under another indictment; that she had
no home, except with the accused; that, at some time before the
trial, a subpoena had been issued for her, but, by mistake, she was
named as Mary Jane Schobold; that an officer who knew the witness
personally went to the house of the accused to serve the subpoena,
and on his arrival inquired for her, either by the name of Mary
Jane Schofield or Mrs. Reynolds; that he was told by the accused
she was not at home; Page 98 U. S. 160 that he then said, "Will you tell me where she is?" that the
reply was "No; that will be for you to find out;" that the officer
then remarked she was making him considerable trouble, and that she
would get into trouble herself; and the accused replied, "Oh, no;
she won't, till the subpoena is served upon her," and then, after
some further conversation, that "She does not appear in this
case."

															It being discovered after the trial commenced that a wrong name
had been inserted in the subpoena, a new subpoena was issued with
the right name, at nine o'clock in the evening. With this, the
officer went again to the house, and there found a person known as
the first wife of the accused. He was told by her that the witness
was not there, and had not been for three weeks. He went again the
next morning, and, not finding her or being able to ascertain where
she was by inquiring in the neighborhood, made return of that fact
to the court. At ten o'clock that morning, the case was again
called, and, the foregoing facts being made to appear, the court
ruled that evidence of what the witness had sworn to at the former
trial was admissible.

															In this we see no error. The accused was himself personally
present in court when the showing was made, and had full
opportunity to account for the absence of the witness, if he would,
or to deny under oath that he had kept her away. Clearly, enough
had been proven to cast the burden upon him of showing that he had
not been instrumental in concealing or keeping the witness away.
Having the means of making the necessary explanation, and having
every inducement to do so if he would, the presumption is that he
considered it better to rely upon the weakness of the case made
against him than to attempt to develop the strength of his own.
Upon the testimony as it stood, it is clear to our minds that the
judgment should not be reversed because secondary evidence was
admitted.

															This brings us to the consideration of what the former testimony
was, and the evidence by which it was proven to the jury.

															It was testimony given on a former trial of the same person for
the same offence, but under another indictment. It was Page 98 U. S. 161 substantially testimony given at another time in the same cause.
The accused was present at the time the testimony was given, and
had full opportunity of cross-examination. This brings the case
clearly within the well established rules. The cases are fully
cited in 1 Whart.Evid., sect. 177.

															The objection to the reading by Mr. Patterson of what was sworn
to on the former trial does not seem to have been because the paper
from which he read was not a true record of the evidence as given,
but because the foundation for admitting the secondary evidence had
not been laid. This objection, as has already been seen, was not
well taken.

															5. As to the defence of religious belief or duty.

															On the trial, the plaintiff in error, the accused, proved that,
at the time of his alleged second marriage, he was, and for many
years before had been, a member of the Church of Jesus Christ of
Latter-Day Saints, commonly called the Mormon Church, and a
believer in its doctrines; that it was an accepted doctrine of that
church

															"that it was the duty of male members of said church,
circumstances permitting, to practise polygamy; . . . that this
duty was enjoined by different books which the members of said
church believed to be of divine origin, and, among others, the Holy
Bible, and also that the members of the church believed that the
practice of polygamy was directly enjoined upon the male members
thereof by the Almighty God, in a revelation to Joseph Smith, the
founder and prophet of said church; that the failing or refusing to
practise polygamy by such male members of said church, when
circumstances would admit, would be punished, and that the penalty
for such failure and refusal would be damnation in the life to
come."

															He also proved

															"that he had received permission from the recognized authorities
in said church to enter into polygamous marriage; . . . that Daniel
H. Wells, one having authority in said church to perform the
marriage ceremony, married the said defendant on or about the time
the crime is alleged to have been committed, to some woman by the
name of Schofield, and that such marriage ceremony was performed
under and pursuant to the doctrines of said church."

															Upon this proof, he asked the court to instruct the jury that,
if they found from the evidence that he

															"was married as Page 98 U. S. 162 charged -- if he was married -- in pursuance of and in
conformity with what he believed at the time to be a religious
duty, that the verdict must be 'not guilty.'"

															This request was refused, and the court did charge

															"that there must have been a criminal intent, but that if the
defendant, under the influence of a religious belief that it was
right -- under an inspiration, if you please, that it was right --
deliberately married a second time, having a first wife living, the
want of consciousness of evil intent -- the want of understanding
on his part that he was committing a crime -- did not excuse him,
but the law inexorably in such case implies the criminal
intent."

															Upon this charge and refusal to charge, the question is raised
whether religious belief can be accepted as a justification of an
overt act made criminal by the law of the land. The inquiry is not
as to the power of Congress to prescribe criminal laws for the
Territories, but as to the guilt of one who knowingly violates a
law which has been properly enacted if he entertains a religious
belief that the law is wrong.

															Congress cannot pass a law for the government of the Territories
which shall prohibit the free exercise of religion. The first
amendment to the Constitution expressly forbids such legislation.
Religious freedom is guaranteed everywhere throughout the United
States, so far as congressional interference is concerned. The
question to be determined is, whether the law now under
consideration comes within this prohibition.

															The word "religion" is not defined in the Constitution. We must
go elsewhere, therefore, to ascertain its meaning, and nowhere more
appropriately, we think, than to the history of the times in the
midst of which the provision was adopted. The precise point of the
inquiry is what is the religious freedom which has been
guaranteed.

															Before the adoption of the Constitution, attempts were made in
some of the colonies and States to legislate not only in respect to
the establishment of religion, but in respect to its doctrines and
precepts as well. The people were taxed, against their will, for
the support of religion, and sometimes for the support of
particular sects to whose tenets they could not and did not
subscribe. Punishments were prescribed for a failure to attend upon
public worship, and sometimes for entertaining Page 98 U. S. 163 heretical opinions. The controversy upon this general subject
was animated in many of the States, but seemed at last to culminate
in Virginia. In 1784, the House of Delegates of that State, having
under consideration "a bill establishing provision for teachers of
the Christian religion," postponed it until the next session, and
directed that the bill should be published and distributed, and
that the people be requested "to signify their opinion respecting
the adoption of such a bill at the next session of assembly."

															This brought out a determined opposition. Amongst others, Mr.
Madison prepared a "Memorial and Remonstrance," which was widely
circulated and signed, and in which he demonstrated "that religion,
or the duty we owe the Creator," was not within the cognizance of
civil government. Semple's Virginia Baptists, Appendix. At the next
session, the proposed bill was not only defeated, but another, "for
establishing religious freedom," drafted by Mr. Jefferson, was
passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the
preamble of this act (12 Hening's Stat. 84) religious freedom is
defined, and, after a recital

															"that to suffer the civil magistrate to intrude his powers into
the field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency is a dangerous
fallacy which at once destroys all religious liberty,"

															it is declared

															"that it is time enough for the rightful purposes of civil
government for its officers to interfere when principles break out
into overt acts against peace and good order."

															In these two sentences is found the true distinction between
what properly belongs to the church and what to the State.

															In a little more than a year after the passage of this statute,
the convention met which prepared the Constitution of the United
States. Of this convention, Mr. Jefferson was not a member, he
being then absent as minister to France. As soon as he saw the
draft of the Constitution proposed for adoption, he, in a letter to
a friend, expressed his disappointment at the absence of an express
declaration insuring the freedom of religion (2 Jeff.Works 355),
but was willing to accept it as it was, trusting that the good
sense and honest intentions of the people would bring about the
necessary alterations. Page 98 U. S. 164 1 Jeff. Works 79. Five of the States, while adopting the
Constitution, proposed amendments. Three -- New Hampshire, New
York, and Virginia -- included in one form or another a declaration
of religious freedom in the changes they desired to have made, as
did also North Carolina, where the convention at first declined to
ratify the Constitution until the proposed amendments were acted
upon. Accordingly, at the first session of the first Congress, the
amendment now under consideration was proposed with others by Mr.
Madison. It met the views of the advocates of religious freedom,
and was adopted. Mr. Jefferson afterwards, in reply to an address
to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say:

															"Believing with you that religion is a matter which lies solely
between man and his God; that he owes account to none other for his
faith or his worship; that the legislative powers of the government
reach actions only, and not opinions -- I contemplate with
sovereign reverence that act of the whole American people which
declared that their legislature should 'make no law respecting an
establishment of religion or prohibiting the free exercise
thereof,' thus building a wall of separation between church and
State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with
sincere satisfaction the progress of those sentiments which tend to
restore man to all his natural rights, convinced he has no natural
right in opposition to his social duties."

															Coming as this does from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative
declaration of the scope and effect of the amendment thus secured.
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of
social duties or subversive of good order.

															Polygamy has always been odious among the northern and western
nations of Europe, and, until the establishment of the Mormon
Church, was almost exclusively a feature of the life of Asiatic and
of African people. At common law, the second marriage was always
void (2 Kent, Com. 79), and from the earliest history of England,
polygamy has been treated as an offence against society. After the
establishment of the ecclesiastical Page 98 U. S. 165 courts, and until the time of James I, it was punished through
the instrumentality of those tribunals not merely because
ecclesiastical rights had been violated, but because upon the
separation of the ecclesiastical courts from the civil the
ecclesiastical were supposed to be the most appropriate for the
trial of matrimonial causes and offences against the rights of
marriage, just as they were for testamentary causes and the
settlement of the estates of deceased persons.

															By the statute of 1 James I (c. 11), the offence, if committed
in England or Wales, was made punishable in the civil courts, and
the penalty was death. As this statute was limited in its operation
to England and Wales, it was at a very early period reenacted,
generally with some modifications, in all the colonies. In
connection with the case we are now considering, it is a
significant fact that, on the 8th of December, 1788, after the
passage of the act establishing religious freedom, and after the
convention of Virginia had recommended as an amendment to the
Constitution of the United States the declaration in a bill of
rights that "all men have an equal, natural, and unalienable right
to the free exercise of religion, according to the dictates of
conscience," the legislature of that State substantially enacted
the statute of James I., death penalty included, because, as
recited in the preamble, "it hath been doubted whether bigamy or
poligamy be punishable by the laws of this Commonwealth." 12
Hening's Stat. 691. From that day to this, we think it may safely
be said there never has been a time in any State of the Union when
polygamy has not been an offence against society, cognizable by the
civil courts and punishable with more or less severity. In the face
of all this evidence, it is impossible to believe that the
constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of
social life. Marriage, while from its very nature a sacred
obligation, is nevertheless, in most civilized nations, a civil
contract, and usually regulated by law. Upon it society may be said
to be built, and out of its fruits spring social relations and
social obligations and duties with which government is necessarily
required to deal. In fact, according as monogamous or polygamous
marriages are allowed, do we find the principles on which the
government of Page 98 U. S. 166 the people, to a greater or less extent, rests. Professor,
Lieber says, polygamy leads to the patriarchal principle, and
which, when applied to large communities, fetters the people in
stationary despotism, while that principle cannot long exist in
connection with monogamy. Chancellor Kent observes that this remark
is equally striking and profound. 2 Kent, Com. 81, note (e). An
exceptional colony of polygamists under an exceptional leadership
may sometimes exist for a time without appearing to disturb the
social condition of the people who surround it; but there cannot be
a doubt that, unless restricted by some form of constitution, it is
within the legitimate scope of the power of every civil government
to determine whether polygamy or monogamy shall be the law of
social life under its dominion.

															In our opinion, the statute immediately under consideration is
within the legislative power of Congress. It is constitutional and
valid as prescribing a rule of action for all those residing in the
Territories, and in places over which the United States have
exclusive control. This being so, the only question which remains
is whether those who make polygamy a part of their religion are
excepted from the operation of the statute. If they are, then those
who do not make polygamy a part of their religious belief may be
found guilty and punished, while those who do, must be acquitted
and go free. This would be introducing a new element into criminal
law. Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifices were a
necessary part of religious worship; would it be seriously
contended that the civil government under which he lived could not
interfere to prevent a sacrifice? Or if a wife religiously believed
it was her duty to burn herself upon the funeral pile of her dead
husband; would it be beyond the power of the civil government to
prevent her carrying her belief into practice?

															So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices to
the contrary because of his religious belief? Page 98 U. S. 167 To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and, in effect,
to permit every citizen to become a law unto himself. Government
could exist only in name under such circumstances.

															A criminal intent is generally an element of crime, but every
man is presumed to intend the necessary and legitimate consequences
of what he knowingly does. Here, the accused knew he had been once
married, and that his first wife was living. He also knew that his
second marriage was forbidden by law. When, therefore, he married
the second time, he is presumed to have intended to break the law.
And the breaking of the law is the crime. Every act necessary to
constitute the crime was knowingly done, and the crime was
therefore knowingly committed. Ignorance of a fact may sometimes be
taken as evidence of a want of criminal intent, but not ignorance
of the law. The only defence of the accused in this case is his
belief that the law ought not to have been enacted. It matters not
that his belief was a part of his professed religion; it was still
belief, and belief only.

															In Regina v. Wagstaff (10 Cox Crim.Cases, 531), the
parents of a sick child, who omitted to call in medical attendance
because of their religious belief that what they did for its cure
would be effective, were held not to be guilty of manslaughter,
while it was said the contrary would have been the result if the
child had actually been starved to death by the parents under the
notion that it was their religious duty to abstain from giving it
food. But when the offence consists of a positive act which is
knowingly done, it would be dangerous to hold that the offender
might escape punishment because he religiously believed the law
which he had broken ought never to have been made. No case, we
believe, can be found that has gone so far.

															6. As to that part of the charge which directed the attention of
the jury to the consequences of polygamy.

															The passage complained of is as follows:

															"I think it not improper, in the discharge of your duties in
this case, that you should consider what are to be the consequences
to the innocent victims of this delusion. As this contest goes on,
they multiply, Page 98 U. S. 168 and there are pure-minded women and there are innocent children
-- innocent in a sense even beyond the degree of the innocence of
childhood itself. These are to be the sufferers; and as jurors fail
to do their duty, and as these cases come up in the Territory of
Utah, just so do these victims multiply and spread themselves over
the land."

															While every appeal by the court to the passions or the
prejudices of a jury should be promptly rebuked, and while it is
the imperative duty of a reviewing court to take care that wrong is
not done in this way, we see no just cause for complaint in this
case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a
crime in the Territories. This was done because of the evil
consequences that were supposed to flow from plural marriages. All
the court did was to call the attention of the jury to the peculiar
character of the crime for which the accused was on trial, and to
remind them of the duty they had to perform. There was no appeal to
the passions, no instigation of prejudice. Upon the showing made by
the accused himself, he was guilty of a violation of the law under
which he had been indicted, and the effort of the court seems to
have been not to withdraw the minds of the jury from the issue to
be tried, but to bring them to it; not to make them partial, but to
keep them impartial.

															Upon a careful consideration of the whole case, we are satisfied
that no error was committed by the court below. Judgment affirmed. * Supra, p. 89 U. S.
147 .

															MR. JUSTICE FIELD.

															I concur with the majority of the court on the several points
decided except one -- that which relates to the admission of the
testimony of Amelia Jane Schofield given on a former trial upon a
different indictment. I do not think that a sufficient foundation
was laid for its introduction. The authorities cited by the Chief
Justice to sustain its admissibility seem to me to establish
conclusively the exact reverse.

															NOTE. At a subsequent day of the term, a petition for a
rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the
opinion of the court.

															Since our judgment in this case was announced, a petition for
rehearing has been filed, in which our attention is called to the
fact that the sentence of the Page 98 U. S. 169 court below requires the imprisonment to be at hard labor, when
the act of Congress under which the indictment was found provides
for punishment by imprisonment only. This was not assigned for
error on the former hearing, and we might on that account decline
to consider it now; but as the irregularity is one which appears on
the face of the record, we vacate our former judgment of
affirmance, and reverse the judgment of the court below for the
purpose of correcting the only error which appears in the record,
to-wit, in the form of the sentence. The cause is remanded, with
instructions to cause the sentence of the District Court to be set
aside and a new one entered on the verdict in all respects like
that before imposed, except so far as it requires the imprisonment
to be at hard labor.


U.S. Supreme Court Minersville Sch. Dist. v. Board of
Educ., 310
U.S. 586 (1940) Minersville School District v. Board
of Education No. 690 Argued April 25, 1940 Decided June 3, 1940 310
U.S. 586 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE THIRD
CIRCUIT Syllabus 1. A state regulation requiring that pupils in the public
schools, on pain of expulsion, participate in a daily ceremony of
saluting the national flag whilst reciting in unison a pledge of
allegiance to it "and to the Republic for which it stands; one
Nation indivisible, with liberty and justice for all" -- held within the scope of legislative power, and consistent
with the Fourteenth Amendment, as applied to children brought up
in, and entertaining, a conscientious religious belief that such
obeisance to the flag is forbidden by the Bible and that the Bible,
as the Word of God, is the supreme authority. P. 310 U. S.
591 .

															2. Religious convictions do not relieve the individual from
obedience to an otherwise valid general law not aimed at the
promotion or restriction of religious beliefs. P. 310 U. S.
594 .

															3. So far as the Federal Constitution is concerned, it is within
the province of the legislatures and school authorities of the
several States to adopt appropriate means to evoke and foster a
sentiment of national unity among the children in the public
schools. P. 310 U. S.
597 .

															4. This Court cannot exercise censorship over the conviction of
legislatures that a particular program or exercise will best
promote in the minds of children who attend the common schools an
attachment to the institutions of their country, nor overrule the
local judgment against granting exemptions from observance of such
a program. P. 310 U. S.
598 .

															108 F.2d 683, reversed.

															CERTIORARI, 309 U.S. 645, to review the affirmance of a

															decree ( 24 F. Supp.
271 ; opinion, 21 F.Supp. 581) which perpetually enjoined the
above-named School District, the members of its board of education,
and its superintendent of public schools from continuing to enforce
an order expelling from the public schools certain minors (suing in
this case by their father as next friend), and from Page 310 U. S. 587 requiring them to salute the national flag as a condition to
their right to attend. Page 310 U. S. 591 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

															A grave responsibility confronts this Court whenever, in course
of litigation, it must reconcile the conflicting claims of liberty
and authority. But when the liberty invoked is liberty of
conscience, and the authority is authority to safeguard the
nation's fellowship, judicial conscience is put to its severest
test. Of such a nature is the present controversy.

															Lillian Gobitis, aged twelve, and her brother William, aged ten,
were expelled from the public schools of Minersville, Pennsylvania,
for refusing to salute the national flag as part of a daily school
exercise. The local Board of Education required both teachers and
pupils to participate in this ceremony. The ceremony is a familiar
one. The right hand is placed on the breast and the following
pledge recited in unison: "I pledge allegiance to my flag, and to
the Republic for which it stands; one nation indivisible, with
liberty and justice for all." While the words are spoken, teachers
and pupils extend their right hands in salute to the flag. The
Gobitis family are affiliated with "Jehovah's Witnesses," for whom
the Bible as the Word of God is the supreme authority. The
children Page 310 U. S. 592 had been brought up conscientiously to believe that such a
gesture of respect for the flag was forbidden by command of
Scripture. [ Footnote 1 ]

															The Gobitis children were of an age for which Pennsylvania makes
school attendance compulsory. Thus, they were denied a free
education, and their parents had to put them into private schools.
To be relieved of the financial burden thereby entailed, their
father, on behalf of the children and in his own behalf, brought
this suit. He sough to enjoin the authorities from continuing to
exact participation in the flag salute ceremony as a condition of
his children's attendance at the Minersville school. After trial of
the issues, Judge Maris gave relief in the District Court, 24 F. Supp.
271 , on the basis of a thoughtful opinion at a preliminary
stage of the litigation, 21 F. Supp.
581 ; his decree was affirmed by the Circuit Court of Appeals,
108 F.2d 683. Since this decision ran counter to several per curiam
dispositions of this Court, [ Footnote 2 ] we granted certiorari to give the matter full
reconsideration. 309 U.S. 645. By their able submissions, he
Committee on the Bill of Rights of the American Bar Association and
the American Civil Liberties Union, as friends of the Court, have
helped us to our conclusion.

															We must decide whether the requirement of participation in such
a ceremony, exacted from a child who refuses Page 310 U. S. 593 upon sincere religious grounds, infringes without due process of
law the liberty guaranteed by the Fourteenth Amendment.

															Centuries of strife over the erection of particular dogmas as
exclusive or all-comprehending faiths led to the inclusion of a
guarantee for religious freedom in the Bill of Rights. The First
Amendment, and the Fourteenth through its absorption of the First,
sought to guard against repetition of those bitter religious
struggles by prohibiting the establishment of a state religion and
by securing to every sect the free exercise of its faith. So
pervasive is the acceptance of this precious right that its scope
is brought into question, as here, only when the conscience of
individuals collides with the felt necessities of society.

															Certainly the affirmative pursuit of one's convictions about the
ultimate mystery of the universe and man's relation to it is placed
beyond the reach of law. Government may not interfere with
organized or individual expression of belief or disbelief.
Propagation of belief -- or even of disbelief -- in the
supernatural is protected, whether in church or chapel, mosque or
synagogue, tabernacle or meetinghouse. Likewise, the Constitution
assures generous immunity to the individual from imposition of
penalties for offending, in the course of his own religious
activities, the religious views of others, be they a minority or
those who are dominant in government. Cantwell v. Connecticut,
ante, p. 310 U. S. 296 .

															But the manifold character of man's relations may bring his
conception of religious duty into conflict with the secular
interests of his fellow men. When does the constitutional guarantee
compel exemption from doing what society thinks necessary for the
promotion of some great common end, or from a penalty for conduct
which appears dangerous to the general good? To state the Page 310 U. S. 594 problem is to recall the truth that no single principle can
answer all of life's complexities. The right to freedom of
religious belief, however dissident and however obnoxious to the
cherished beliefs of others -- even of a majority -- is itself the
denial of an absolute. But to affirm that the freedom to follow
conscience has itself no limits in the life of a society would deny
that very plurality of principles which, as a matter of history,
underlies protection of religious toleration. Compare Mr.
Justice Holmes in Hudson Water Co. v. McCarter, 209 U. S. 349 , 209 U. S. 355 .
Our present task, then, as so often the case with courts, is to
reconcile two rights in order to prevent either from destroying the
other. But, because, in safeguarding conscience, we are dealing
with interests so subtle and so dear, every possible leeway should
be given to the claims of religious faith.

															In the judicial enforcement of religious freedom, we are
concerned with a historic concept. See Mr. Justice Cardozo
in Hamilton v. Regents, 293 U.S. at 293 U. S. 265 .
The religious liberty which the Constitution protects has never
excluded legislation of general scope not directed against
doctrinal loyalties of particular sects. Judicial nullification of
legislation cannot be justified by attributing to the framers of
the Bill of Rights views for which there is no historic warrant.
Conscientious scruples have not, in the course of the long struggle
for religious toleration, relieved the individual from obedience to
a general law not aimed at the promotion or restriction of
religious beliefs. [ Footnote 3 ]
The mere possession of religious convictions Page 310 U. S. 595 which contradict the relevant concerns of a political society
does not relieve the citizen from the discharge of political
responsibilities. The necessity for this adjustment has again and
again been recognized. In a number of situations, the exertion of
political authority has been sustained, while basic considerations
of religious freedom have been left inviolate. Reynolds v.
United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Selective Draft Law Cases, 245 U.
S. 366 ; Hamilton v. Regents, 293 U.
S. 245 . In all these cases, the general laws in
question, upheld in their application to those who refused
obedience from religious conviction, were manifestations of
specific powers of government deemed by the legislature essential
to secure and maintain that orderly, tranquil, and free society
without which religious toleration itself is unattainable. Nor does
the freedom of speech assured by Due Process move in a more
absolute circle of immunity than that enjoyed by religious freedom.
Even if it were assumed that freedom of speech goes beyond the
historic concept of full opportunity to utter and to disseminate
views, however heretical or offensive to dominant opinion, and
includes freedom from conveying what may be deemed an implied but
rejected affirmation, the question remains whether school children,
like the Gobitis children, must be excused from conduct required of
all the other children in the promotion of national cohesion. We
are dealing with an interest inferior to none in the hierarchy of
legal values. National unity is the basis of national security. To
deny the legislature the right to select appropriate means for its
attainment presents a totally different order of problem from that
of the propriety of subordinating the possible ugliness of littered
streets to the free expression of opinion through distribution of
handbills. Compare Schneider v. State, 308 U.
S. 147 . Page 310 U. S. 596 Situations like the present are phases of the profoundest
problem confronting a democracy -- the problem which Lincoln cast
in memorable dilemma: "Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?" No mere textual
reading or logical talisman can solve the dilemma. And when the
issue demands judicial determination, it is not the personal notion
of judges of what wise adjustment requires which must prevail.

															Unlike the instances we have cited, the case before us is not
concerned with an exertion of legislative power for the promotion
of some specific need or interest of secular society -- the
protection of the family, the promotion of health, the common
defense, the raising of public revenues to defray the cost of
government. But all these specific activities of government
presuppose the existence of an organized political society. The
ultimate foundation of a free society is the binding tie of
cohesive sentiment. Such a sentiment is fostered by all those
agencies of the mind and spirit which may serve to gather up the
traditions of a people, transmit them from generation to
generation, and thereby create that continuity of a treasured
common life which constitutes a civilization. "We live by symbols."
The flag is the symbol of our national unity, transcending all
internal differences, however large, within the framework of the
Constitution. This Court has had occasion to say that

															". . . the flag is the symbol of the Nation's power, the emblem
of freedom in its truest, best sense. . . . it signifies government
resting on the consent of the governed; liberty regulated by law;
the protection of the weak against the strong; security against the
exercise of arbitrary power, and absolute safety for free
institutions against foreign aggression." Halter v. Nebraska, 205 U. S. 34 , 205 U. S. 43 . And see Page 310 U. S. 597 United States v. Glettysburg Electric Ry. Co., 160 U. S. 668 .
[ Footnote 4 ]

															The case before us must be viewed as though the legislature of
Pennsylvania had itself formally directed the flag salute for the
children of Minersville; had made no exemption for children whose
parents were possessed of conscientious scruples like those of the
Gobitis family, and had indicated its belief in the desirable ends
to be secured by having its public school children share a common
experience at those periods of development when their minds are
supposedly receptive to its assimilation, by an exercise
appropriate in time and place and setting, and one designed to
evoke in them appreciation of the nation's hopes and dreams, its
sufferings and sacrifices. The precise issue, then, for us to
decide is whether the legislatures of the various states and the
authorities in a thousand counties and school districts of this
country are barred from determining the appropriateness of various
means to evoke that unifying sentiment without which there can
ultimately be no liberties, civil or religious. [ Footnote 5 ] To stigmatize legislative
judgment in providing for this universal gesture of respect for the
symbol of our national life in the setting of the common school as
a lawless inroad on that freedom of conscience which the
Constitution protects, would amount to no less than the
pronouncement of pedagogical and psychological dogma in a field
where courts possess no marked and certainly no Page 310 U. S. 598 controlling competence. The influences which help toward a
common feeling for the common country are manifold. Some may seem
harsh, and others no doubt are foolish. Surely, however, the end is
legitimate. And the effective means for its attainment are still so
uncertain and so unauthenticated by science as to preclude us from
putting the widely prevalent belief in flag saluting beyond the
pale of legislative power. It mocks reason and denies our whole
history to find in the allowance of a requirement to salute our
flag on fitting occasions the seeds of sanction for obeisance to a
leader.

															The wisdom of training children in patriotic impulses by those
compulsions which necessarily pervade so much of the educational
process is not for our independent judgment. Even were we convinced
of the folly of such a measure, such belief would be no proof of
its unconstitutionality. For ourselves, we might be tempted to say
that the deepest patriotism is best engendered by giving unfettered
scope to the most crochety beliefs. Perhaps it is best, even from
the standpoint of those interests which ordinances like the one
under review seek to promote, to give to the least popular sect
leave from conformities like those here in issue. But the courtroom
is not the arena for debating issues of educational policy. It is
not our province to choose among competing considerations in the
subtle process of securing effective loyalty to the traditional
ideals of democracy, while respecting at the same time individual
idiosyncracies among a people so diversified in racial origins and
religious allegiances. So to hold would, in effect, make us the
school board for the country. That authority has not been given to
this Court, nor should we assume it.

															We are dealing here with the formative period in the development
of citizenship. Great diversity of psychological and ethical
opinion exists among us concerning the best way to train children
for their place in society. Because Page 310 U. S. 599 of these differences and because of reluctance to permit a
single, iron-cast system of education to be imposed upon a nation
compounded of so many strains, we have held that, even though
public education is one of our most cherished democratic
institutions, the Bill of Rights bars a state from compelling all
children to attend the public schools. Pierce v. Society of
Sisters, 268 U. S. 510 . But
it is a very different thing for this Court to exercise censorship
over the conviction of legislatures that a particular program or
exercise will best promote in the minds of children who attend the
common schools an attachment to the institutions of their
country.

															What the school authorities are really asserting is the right to
awaken in the child's mind considerations as to the significance of
the flag contrary to those implanted by the parent. In such an
attempt, the state is normally at a disadvantage in competing with
the parent's authority, so long -- and this is the vital aspect of
religious toleration -- as parents are unmolested in their right to
counteract by their own persuasiveness the wisdom and rightness of
those loyalties which the state's educational system is seeking to
promote. Except where the transgression of constitutional liberty
is too plain for argument, personal freedom is best maintained --
so long as the remedial channels of the democratic process remain
open and unobstructed [ Footnote
6 ] -- when it is ingrained in a people's habits, and not
enforced against popular policy by the coercion of adjudicated law.
That the flag salute is an allowable portion of a school program
for those who do not invoke conscientious scruples is surely not
debatable. But for us to insist that, though the ceremony may be
required, exceptional immunity must be Page 310 U. S. 600 given to dissidents, is to maintain that there is no basis for a
legislative judgment that such an exemption might introduce
elements of difficulty into the school discipline, might cast
doubts in the minds of the other children which would themselves
weaken the effect of the exercise.

															The preciousness of the family relation, the authority and
independence which give dignity to parenthood, indeed the enjoyment
of all freedom, presuppose the kind of ordered society which is
summarized by our flag. A society which is dedicated to the
preservation of these ultimate values of civilization may, in
self-protection, utilize the educational process for inculcating
those almost unconscious feelings which bind men together in a
comprehending loyalty, whatever may be their lesser differences and
difficulties. That is to say, the process may be utilized so long
as men's right to believe as they please, to win others to their
way of belief, and their right to assemble in their chosen places
of worship for the devotional ceremonies of their faith, are all
fully respected.

															Judicial review, itself a limitation on popular government, is a
fundamental part of our constitutional scheme. But to the
legislature no less than to courts is committed the guardianship of
deeply cherished liberties. See Missouri, K. & T. Ry. Co.
v. May, 194 U. S. 267 , 194 U. S. 270 .
Where all the effective means of inducing political changes are
left free from interference, education in the abandonment of
foolish legislation is itself a training in liberty. To fight out
the wise use of legislative authority in the forum of public
opinion and before legislative assemblies, rather than to transfer
such a contest to the judicial arena, serves to vindicate the
self-confidence of a free people. [ Footnote 7 ] Reversed. Page 310 U. S. 601 [ Footnote 1 ]

															Reliance is especially placed on the following verses from
Chapter 20 of Exodus:

															"3. Thou shalt have no other gods before me."

															"4. Thou shalt not make unto thee any graven image, or any
likeness of any thing that is in heaven above, or that is in the
earth beneath, or that is in the water under the earth: "

															"5. Thou shalt not bow down thyself to them, nor serve them: . .
."

															[ Footnote 2 ] Leoles v. Landers, 302 U.S. 656; Hering v. State
Board of Education, 303 U.S. 624; Gabrielli v.
Knickerbocker, 306 U.S. 621; Johnson v. Deerfield, 306 U.S. 621. Compare New York v. Sandstrom, 279 N.Y. 523;
18 N.E.2d 840; Nicholls v. Mayor and School Committee of
Lynn, 7 N.E.2d 577 (Mass.).

															[ Footnote 3 ] Compare II Writings of Thomas Jefferson (Ford ed.) p.
102; 3 Letters and Other Writings of James Madison, pp. 274,
307-308; 1 Rhode Island Colonial Records, pp. 378-80; 2 Id. pp. 6; Wiener, Roger Williams' Contribution to Modern
Thought, 28 Rhode Island Historical Society Collections, No. 1;
Ernst, The Political Thought of Roger Williams, chap. VII; W. K.
Jordan, The Development of Religious Toleration in England, passim. See Commonwealth v. Herr, 229 Pa. 132; 78
A. 68.

															[ Footnote 4 ]

															For the origin and history of the American flag, see 8
Journals of the Continental Congress, p. 464; 22 id., pp.
338-340; Annals of Congress, 15th Cong., 1st Sess., Vol. 1, pp. 566 et seq.; id., Vol. 2, pp. 1458 et
seq. [ Footnote 5 ] Compare Balfour, Introduction to Bagehot's English
Constitution, p. XXII; Santayana, Character and Opinion in the
United States, pp. 110-111.

															[ Footnote 6 ]

															In cases like Fiske v. Kansas, 274 U.
S. 380 ; De Jonge v. Oregon, 299 U.
S. 353 ; Lovell v. Griffin, 303 U.
S. 444 ; Hague v. CIO, 307 U.
S. 496 , and Schneider v. State, 308 U.
S. 147 , the Court was concerned with restrictions
cutting off appropriate means through which, in a free society, the
processes of popular rule may effectively function.

															[ Footnote 7 ]

															It is to be noted that the Congress has not entered the field of
legislation here under consideration.

															MR. JUSTICE STONE, dissenting:

															I think the judgment below should be affirmed.

															Two youths, now fifteen and sixteen years of age, are by the
judgment of this Court held liable to expulsion from the public
schools and to denial of all publicly supported educational
privileges because of their refusal to yield to the compulsion of a
law which commands their participation in a school ceremony
contrary to their religious convictions. They and their father are
citizens, and have not exhibited by any action or statement of
opinion, any disloyalty to the Government of the United States.
They are ready and willing to obey all its laws which do not
conflict with what they sincerely believe to be the higher
commandments of God. It is not doubted that these convictions are
religious, that they are genuine, or that the refusal to yield to
the compulsion of the law is in good faith, and with all sincerity.
It would be a denial of their faith, as well as the teachings of
most religions, to say that children of their age could not have
religious convictions.

															The law which is thus sustained is unique in the history of
Anglo-American legislation. It does more than suppress freedom of
speech, and more than prohibit the free exercise of religion, which
concededly are forbidden by the First Amendment and are violations
of the liberty guaranteed by the Fourteenth. For, by this law, the
state seeks to coerce these children to express a sentiment which,
as they interpret it, they do not entertain, and which violates
their deepest religious convictions. It is not denied that such
compulsion is a prohibited infringement of personal liberty,
freedom of speech and religion, guaranteed by the Bill of Rights,
except insofar as it may be justified and supported as a proper
exercise of the state's power over public education. Since the
state, Page 310 U. S. 602 in competition with parents, may, through teaching in the public
schools, indoctrinate the minds of the young, it is said that, in
aid of its undertaking to inspire loyalty and devotion to
constituted authority and the flag which symbolizes it, it may
coerce the pupil to make affirmation contrary to his belief and in
violation of his religious faith. And, finally, it is said that,
since the Minersville School Board and others are of the opinion
that the country will be better served by conformity than by the
observance of religious liberty which the Constitution prescribes,
the courts are not free to pass judgment on the Board's choice.

															Concededly the constitutional guaranties of personal liberty are
not always absolutes. Government has a right to survive and powers
conferred upon it are not necessarily set at naught by the express
prohibitions of the Bill of Rights. It may make war and raise
armies. To that end, it may compel citizens to give military
service, Selective Draft Law Cases, 245 U.
S. 366 , and subject them to military training despite
their religious objections. Hamilton v. Regents, 293 U. S. 245 . It
may suppress religious practices dangerous to morals, and
presumably those also which are inimical to public safety, health
and good order. Davis v. Beason, 133 U.
S. 333 . But it is a long step, and one which I am unable
to take, to the position that government may, as a supposed
educational measure and as a means of disciplining the young,
compel public affirmations which violate their religious
conscience.

															The very fact that we have constitutional guaranties of civil
liberties and the specificity of their command where freedom of
speech and of religion are concerned require some accommodation of
the powers which government normally exercises, when no question of
civil liberty is involved, to the constitutional demand that those
liberties be protected against the action of government Page 310 U. S. 603 itself. The state concededly has power to require and control
the education of its citizens, but it cannot, by a general law
compelling attendance at public schools, preclude attendance at a
private school adequate in its instruction where the parent seeks
to secure for the child the benefits of religious instruction not
provided by the public school. Pierce v. Society of
Sisters, 268 U. S. 510 . And
only recently we have held that the state's authority to control
its public streets by generally applicable regulations is not an
absolute to which free speech must yield, and cannot be made the
medium of its suppression, Hague v. Committee for Industrial
Organization, 307 U. S. 496 , 307 U. S. 514 , et seq., any more than can its authority to penalize
littering of the streets by a general law be used to suppress the
distribution of handbills as a means of communicating ideas to
their recipients. Schneider v. State, 308 U.
S. 147 .

															In these cases, it was pointed out that, where there are
competing demands of the interests of government and of liberty
under the Constitution, and where the performance of governmental
functions is brought into conflict with specific constitutional
restrictions, there must, when that is possible, be reasonable
accommodation between them so as to preserve the essentials of
both, and that it is the function of courts to determine whether
such accommodation is reasonably possible. In the cases just
mentioned, the Court was of opinion that there were ways enough to
secure the legitimate state end without infringing the asserted
immunity, or that the inconvenience caused by the inability to
secure that end satisfactorily through other means, did not
outweigh freedom of speech or religion. So here, even if we believe
that such compulsions will contribute to national unity, there are
other ways to teach loyalty and patriotism, which are the sources
of national unity, than by compelling the pupil to affirm that
which he does not believe, and by Page 310 U. S. 604 commanding a form of affirmance which violates his religious
convictions. Without recourse to such compulsion, the state is free
to compel attendance at school and require teaching by instruction
and study of all in our history and in the structure and
organization of our government, including the guaranties of civil
liberty which tend to inspire patriotism and love of country. I
cannot say that government here is deprived of any interest or
function which it is entitled to maintain at the expense of the
protection of civil liberties by requiring it to resort to the
alternatives which do not coerce an affirmation of belief.

															The guaranties of civil liberty are but guaranties of freedom of
the human mind and spirit and of reasonable freedom and opportunity
to express them. They presuppose the right of the individual to
hold such opinions as he will and to give them reasonably free
expression, and his freedom, and that of the state as well, to
teach and persuade others by the communication of ideas. The very
essence of the liberty which they guaranty is the freedom of the
individual from compulsion as to what he shall think and what he
shall say, at least where the compulsion is to bear false witness
to his religion. If these guaranties are to have any meaning, they
must, I think, be deemed to withhold from the state any authority
to compel belief or the expression of it where that expression
violates religious convictions, whatever may be the legislative
view of the desirability of such compulsion.

															History teaches us that there have been but few infringements of
personal liberty by the state which have not been justified, as
they are here, in the name of righteousness and the public good,
and few which have not been directed, as they are now, at
politically helpless minorities. The framers were not unaware that,
under the system which they created, most governmental
curtailments Page 310 U. S. 605 of personal liberty would have the support of a legislative
judgment that the public interest would be better served by its
curtailment than by its constitutional protection. I cannot
conceive that, in prescribing, as limitations upon the powers of
government, the freedom of the mind and spirit secured by the
explicit guaranties of freedom of speech and religion, they
intended or rightly could have left any latitude for a legislative
judgment that the compulsory expression of belief which violates
religious convictions would better serve the public interest than
their protection. The Constitution may well elicit expressions of
loyalty to it and to the government which it created, but it does
not command such expressions or otherwise give any indication that
compulsory expressions of loyalty play any such part in our scheme
of government as to override the constitutional protection of
freedom of speech and religion. And while such expressions of
loyalty, when voluntarily given, may promote national unity, it is
quite another matter to say that their compulsory expression by
children in violation of their own and their parents' religious
convictions can be regarded as playing so important a part in our
national unity as to leave school boards free to exact it despite
the constitutional guarantee of freedom of religion. The very terms
of the Bill of Rights preclude, it seems to me, any reconciliation
of such compulsions with the constitutional guaranties by a
legislative declaration that they are more important to the public
welfare than the Bill of Rights.

															But even if this view be rejected and it is considered that
there is some scope for the determination by legislatures whether
the citizen shall be compelled to give public expression of such
sentiments contrary to his religion, I am not persuaded that we
should refrain from passing upon the legislative judgment "as long
as the remedial Page 310 U. S. 606 channels of the democratic process remain open and
unobstructed." This seems to me no less than the surrender of the
constitutional protection of the liberty of small minorities to the
popular will. We have previously pointed to the importance of a
searching judicial inquiry into the legislative judgment in
situations where prejudice against discrete and insular minorities
may tend to curtail the operation of those political processes
ordinarily to be relied on to protect minorities. See United
States v. Carolene Products Co., 304 U.
S. 144 , 304 U. S. 152 ,
note 4. And, until now, we have not hesitated similarly to
scrutinize legislation restricting the civil liberty of racial and
religious minorities although no political process was affected. Meyer v. Nebraska, 262 U. S. 390 ; Pierce v. Society of Sisters, supra; Farrington v.
Tokushige, 273 U. S. 284 .
Here we have such a small minority entertaining in good faith a
religious belief, which is such a departure from the usual course
of human conduct, that most persons are disposed to regard it with
little toleration or concern. In such circumstances, careful
scrutiny of legislative efforts to secure conformity of belief and
opinion by a compulsory affirmation of the desired belief, is
especially needful if civil rights are to receive any protection.
Tested by this standard, I am not prepared to say that the right of
this small and helpless minority, including children having a
strong religious conviction, whether they understand its nature or
not, to refrain from an expression obnoxious to their religion, is
to be overborne by the interest of the state in maintaining
discipline in the schools.

															The Constitution expresses more than the conviction of the
people that democratic processes must be preserved at all costs. It
is also an expression of faith and a command that freedom of mind
and spirit must be preserved, which government must obey if it is
to adhere to that justice and moderation without which no free
government can exist. Page 310 U. S. 607 For this reason, it would seem that legislation which operates
to repress the religious freedom of small minorities, which is
admittedly within the scope of the protection of the Bill of
Rights, must at least be subject to the same judicial scrutiny as
legislation which we have recently held to infringe the
constitutional liberty of religious and racial minorities.

															With such scrutiny I cannot say that the inconveniences which
may attend some sensible adjustment of school discipline in order
that the religious convictions of these children may be spared
presents a problem so momentous or pressing as to outweigh the
freedom from compulsory violation of religious faith which has been
thought worthy of constitutional protection.