Unlike the U.S. constitutional convention — held in Philadelphia from May to September, 1787, where no official record of the proceedings was recorded — delegates to Idaho’s constitutional convention hired secretaries to transcribe the discussion, debate, and argument for posterity. The result was a two volume historical treasure titled Proceedings and Debates of the Constitutional Convention of Idaho 1889 (1912). Idahoans have been additionally blessed over the past 20 years by the existence of an excellent scholarly study of the convention and the constitution it created, authored by Dennis C. Colson – his Idaho’s Constitution: The Tie That Binds (1991). (In what follows I have relied heavily on another work by Colson – namely his article titled “Idaho’s Founders and Their Mormon Test Oath,” in The Advocate, an Idaho State Bar journal, vol. 60, no. 11, pages 11-15, November, 2007.)
Among many other, these volumes convey the story of one man’s markedly unpopular and yet strongly principled stances on issues relating to the place of religion in the new state’s constitution. Peter Jackson Pefley was his name; he was one of contemporary Idaho’s “freethinkers,” or what we would today term an agnostic or atheist. The final quarter of the 19th century fell within what Susan Jacoby (Freethinkers: A History of American Secularism, 2004) described as “the golden age” of American freethought. when Robert G. Ingersoll, the movement’s best known and most eloquent voice, was at the height of his national prominence.
Pefley argued against importing religious elements into the new state’s constitutional structure. He argued, following the example of the U.S. Constitution, against any mention of God in the Idaho constitution’s preamble and against establishing a paid chaplain position to provide benedictions at the commencement of legislative sessions. (He lost decisively on both issues.) Yet he also argued against the disfranchisement of a beleaguered religious minority in Idaho.
Peter J. Pefley was born in Roanoke County, Virginia on June 6, 1830. His grandfather, John Pefley, served as a lieutenant in the Virginia volunteers during the Revolutionary War. Peter Pefley learned the harness-maker’s trade in Virginia. He responded to the call of the gold discoveries in California by traveling overland in 1851 in a wagon train comprising twenty-seven wagons. The journey took six months. En route, he met young Sarah A. Smith, who was traveling in the same company. Pefley engaged in farming near Salem, Oregon. He married Miss Smith in 1855. In 1864, the Pefleys moved to a new home about five miles from Boise. He brought with him about 95 head of cattle and engaged in the dairy business. Later the family moved into Boise proper, where Pefley opened a successful harness and saddlery store. From 1887-1889 he served as mayor of Boise and thereafter served at term as Ada County’s representative to the Idaho Territorial legislature. In 1890, he was selected as one of AdaCounty’s nine delegates to the constitutional convention. “Every public trust reposed in him,” said his biographical sketch in An Illustrated History of the State of Idaho (1899), “has been faithfully guarded, and his service has been valuable and progressive.”
The issue of anti-Mormonism was arguably the most important and most controversial question delegates faced at the convention. Members of the Church of Jesus Christ of the Latter-day Saints had already suffered disfranchisement via an 1885 territorial statute, which expanded the scope of an earlier federal act, the Edmunds Act of 1882. The push for statehood, however, re-raised the issue in a new context.
The prospect of statehood became newly available to Idaho in 1889 in the wake of Republican good fortune in the elections of 1888. The GOP swept the presidency and both houses of Congress. A new, albeit slender, Republican majority paved the way for the admission of western states with Republican majorities in their own territorial legislatures. Republicans sought to buttress their new congressional dominance with the admission of new and reliably Republican western states. Beyond Idaho, alsoWashington, Montana, the two Dakotas, and Wyoming were invited to start the process toward statehood.
Mormonism posed a threat to Idaho’s statehood aspirations in at least three ways. First, contemporary Mormons in southeastern Idaho tended to vote Democratic and to vote as a bloc on behalf of that party. Hence, a growing Mormon population threatened Idaho’s security as Republican state. Second, the practice of polygamy was scorned in Congress; any would-be state with a polygamous community within its borders would enter the process toward statehood at a disadvantage. Third, and finally, Idaho’s Mormons posed the threat that they might vote against the new constitution and Idaho statehood. Delegates to the constitutional convention sought to counteract such Mormon threats by etching a permanent disfranchisement into the stone tablet of the state’s constitution.
The federal Edmunds Act of 1882 made bigamy, polygamy, and cohabitation crimes in the territories and barred any person convicted of these crimes from voting or holding elective or appointive public office. Jurors could also be rejected if they practiced bigamy, polygamy, or cohabitation or simply believed it was right for a man to have more than one wife at the same time. The juror-rejection provision did not require a previous conviction for bigamy, polygamy, or cohabitation. In 1885, Idaho Territory’s legislature passed a test oath that significantly expanded the Edmunds Act’s provisions. Whereas the federal act disfranchised convicted bigamists and polygamists, Idaho’s test required all eligible voters to swear they were not bigamists or polygamists before being allowed to vote. The Idaho act expanded the federal act by broadening the scope of proscription from the realm of actions into the realms of association and belief. As Colson described this expansion in a 2007 journal article:
…the Idaho oath required the voter to swear that he (1) did not practice bigamy or polygamy; (2) did not belong to any organization which “teaches, advises, counsels or encourages” its members to engage in such practices; (3) that he did “not either publicly or privately, or in any manner whatever, teach advise, counsel or encourage any person to commit the crime of bigamy or polygamy;” (4) and finally the he would “regard the constitution of the United States, and the laws thereof, and of this territory as interpreted by the courts, as the supreme law of the land.” (“Idaho’s Founders and Their Mormon Test Oath,” The Advocate, Nov. 2007, p. 11)
Territorial statutes, including the anti-Mormon test oath, would lapse with the onset of Idaho statehood. The new constitution’s anti-Mormon provision, however, carried forward the territorial proscriptions and “expressly and thoroughly disfranchised all Mormons” (Colson, 2007, p. 12). “The only voice raised in defense of Mormons,” wrote Colson (Idaho’s Constitution, p. 157) “was that of Peter J. Pefley.”
Pefley began his remarks to the convention almost distractedly. “I am tired of sitting,” he said,
…and thought I would get up awhile. I have been listening a long time to a great deal of eloquence. I have many times wished I was a great orator, and never more perhaps than on this occasion, from the fact that this is the time at which I think the very essence of the privilege of American citizens is endangered in this territory.
Pefley’s speech ran to over 1,300 words and covered pages 1014-1018 of the Proceedings’ first volume. He quoted some of the fundamental maxims of American democracy to the delegates, including, “Taxation without representation is tyranny.” He noted that “nearly all states” had relatively simple qualifications for voters – chiefly age and citizenship. He suggested that other states and territories with Mormon populations functioned adequately without disfranchising them or barring them from office. Of Utah Territory, for example, he noted: “Mr. Kane is the delegate in congress, he visits the president, calls on the committees, he gets his pay from theUnited States….” He lamented that only Idaho would impose “a religious test” on its voting franchise and office holding. So doing, he argued, ran against the American way.
“American citizenship,” said Pefley, “is the highest work that can exist; I honor our principles and government.” Around the world, he continued, Americans enjoy the protection of their “rights and prerogatives” by their government. Yet if an American citizen landed in Idaho and was a Mormon and he happened to make a donation to a Mormon collection box “…he would be disfranchised and barred from holding office in Idaho.” To do so, Pefley added, struck down “innocent men and women, who have never violated any law or statute in this territory….” Even Mormon children, he noted, were effectively disfranchised in their future adulthood. Pefley condemned the exclusionary powers the convention was granting to state government. “Political and religious persecution are supposed to have died at the termination of the revolution,” he said, “but it appears that Idaho is again an exception, and that the bloody history of two hundred years ago is about to repeat itself, in sentiment at least, with all its hideousness in this state, which should be one of the most liberal, tolerant and enlightened in the American Union.”
Throughout his remarks Pefley, a Democrat, took aim at the Mormon disfranchisement as a Republican measure. Yet, he argued, “The very quintessence of the whole foundation of republicanism as announced in its formation was the equality of all men and universal suffrage. I challenge any republican to deny that.” Pefley expressed little trust in a legislature granted broad powers to limit the franchise. He closed with an ironic allusion to the hereafter: “…when you shall reach that beautiful shore and look over the jasper rampart into that dark abyss, you will bear witness in heaven that Pefley did not vote on this occasion to punish the innocent with the guilty, and that I shall have credit at least for one righteous act on the great Book.”
Alas, Pefley’s impassioned appeal fell on deaf ears. A sweeping disfranchising measure was voted into Article VI of the new constitution. With the close of the convention, Pefley became the only delegate who refused to affix his signature to the document. “I always think that consistency is a jewel highly prized,” he said, “and inasmuch as there are sections in there that I could not endorse when they passed as sections or articles, I cannot conscientiously sign the constitution and therefore ask to be excused.” A delegate immediately rose to move that Pefley be denied his pay if he refused to sign. The chair ruled the delegate out of order, but, as Colson noted: ‘Pefley had the last word, “I do not ask any pay, and I would not have it, and the gentleman can save his motion”’ (2007, p. 14). The U.S. Supreme Court unanimously upheld Idaho Territory’s 1885 test oath on February 3, 1890, in Davis v. Beason. Its opinion cleared the way for congressional approval of Idaho statehood, which was finally signed into law on July 3, 1890.
What then are we to make of Mr. Pefley’s valiant but failed effort to exclude Mormon disfranchisement from Idaho’s constitution? In this writer’s view his fearless embracement of American constitutional principle and the high value he placed on unalloyed consistency freed him from the grasp of the prevailing political sensibility. He, in effect, stepped outside the constraints of contemporary history in his defense of the rights of Mormons in Idaho, and thereby took a stand well worth remembering.
— Ron Roizen
 The author thanks Richard Magunuson for the loan of these volumes from his collection.