1. It is a violation of the Mann Act, 36 Stat. 825, 18 U.S.C. §
398, for a man to transport a woman across state lines for the
purpose of making her his plural wife or cohabiting with her as
such -- notwithstanding the fact that the practice is founded on
his religious belief. Pp. 329 U. S. 16
329 U. S.
2. While the Act was aimed primarily at the use of interstate
commerce for the conduct of commercialized prostitution, it is not
limited to that, and a profit motive is not a sine qua non
to its application. Caminetti v. United States,
242 U. S. 470
329 U. S.
Page 329 U. S. 15
(a) It expressly applies to transportation for purposes of
debauchery, which may be motivated solely by lust. P. 329 U. S.
(b) Under the ejusdem generis
rule, the words "or for
any other immoral purpose" cannot be given a narrower meaning. P.
329 U. S.
3. Polygamous practices are not excluded from the Act, have long
been branded as immoral, and are of the same genus as the other
immoral practices covered by the Act. Pp. 329 U. S.
4. The fact that the regulation of marriage is a state matter
does not make the Act an unconstitutional interference by Congress
with the police power of the States. P. 329 U. S.
5. The power of Congress over the instrumentalities of commerce
is plenary; it may be used to defeat immoral practices, and the
fact that the means used may have "the quality of police
regulations" is not consequential. P. 329 U. S.
6. Transportation of a woman across state lines for the purpose
of entering into a plural marriage or cohabiting with her as a
plural wife is for a purpose prohibited by the Act. P. 329 U. S.
7. Guilt under the Act turns on the purpose which motivates the
transportation, not on its accomplishment. P. 329 U. S.
8. The fact that the accused was motivated by a religious belief
is no defense to a prosecution under the Mann Act. P. 329 U. S.
9. Under the ejusdem generis
rule, the general words
cannot be confined more narrowly than the class of which they are a
part. P. 329 U. S.
146 F.2d 730, affirmed.
Petitioners were convicted of violating the Mann Act, 36 Stat.
825, 18 U.S.C. § 398. 56 F. Supp.
. The Circuit Court of Appeals affirmed. 146 F.2d 730. This
Court granted certiorari. 324 U.S. 835. Affirmed,
329 U. S.
Page 329 U. S. 16
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioners are members of a Mormon sect, known as
Fundamentalists. They not only believe in polygamy; unlike other
Mormons, [Footnote 1
practice it. Each of petitioners, except Stubbs, has, in addition
to his lawful wife, one or more plural wives. Each transported at
least one plural wife across state lines [Footnote 2
] either for the purpose of cohabiting with
her or for the purpose of aiding another member of the cult in such
a project. They were convicted of violating the Mann Act, 36 Stat.
825, 18 U.S.C. § 398, on a trial to the court, a jury having been
waived. 56 F. Supp.
. The judgments of conviction were affirmed on appeal. 146
F.2d 730. The cases are here on petitions for certiorari which we
granted in view of the asserted conflict between the decision below
and Mortensen v. United States, 322 U.
The Act makes an offense the transportation in interstate
commerce of "any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose." The decision turns
on the meaning of the latter phrase, "for any other immoral
United States v. Bitty, 208 U.
, involved a prosecution under a federal statute
making it a crime to import an alien woman "for the purpose of
prostitution, or for any other immoral purpose." 34 Stat. 898, 899,
§ 3. The act was construed to cover a case where a man imported an
alien woman so that she should live with him as his concubine. Two
years later, the Mann Act was passed. Because of the similarity of
the language used in the two acts, the Bitty
Page 329 U. S. 17
a forceful precedent for the construction of the Mann Act. Thus,
one who transported a woman in interstate commerce so that she
should become his mistress or concubine was held to have
transported her for an "immoral purpose" within the meaning of the
Mann Act. Caminetti v. United States, 242 U.
It is argued that the Caminetti
decision gave too wide
a sweep to the Act; that the Act was designed to cover only the
white slave business and related vices; that it was not designed to
cover voluntary actions bereft of sex commercialism, and that, in
any event, it should not be construed to embrace polygamy, which is
a form of marriage and, unlike prostitution or debauchery or the
concubinage involved in the Caminetti
case, has as its
object parenthood and the creation and maintenance of family life.
In support of that interpretation, an exhaustive legislative
history is submitted which, it is said, gives no indication that
the Act was aimed at polygamous practices.
While Mortensen v. United States, supra,
322 U. S. 377
rightly indicated that the Act was aimed "primarily" at the use of
interstate commerce for the conduct of the white slave business, we
find no indication that a profit motive is a sine qua non
to its application. Prostitution, to be sure, normally suggests
sexual relations for hire. [Footnote 3
] But debauchery has no such implied limitation.
In common understanding, the indulgence which that term suggests
may be motivated solely by lust. [Footnote 4
] And so we start with words which,
Page 329 U. S. 18
by their natural import, embrace more than commercialized sex.
What follows is "any other immoral purpose." Under the ejusdem
rule of construction, the general words are confined
to the class, and may not be used to enlarge it. But we could not
give the words a faithful interpretation if we confined them more
narrowly than the class of which they are a part.
That was the view taken by the Court in the Bitty
cases. We do not stop to reexamine the
case to determine whether the Act was properly
applied to the facts there presented. But we adhere to its holding,
which has been in force for almost 30 years, [Footnote 5
] that the Act, while primarily aimed at
the use of interstate commerce for the purposes of commercialized
sex, is not restricted to that end.
We conclude, moreover, that polygamous practices are not
excluded from the Act. They have long been outlawed in our society.
As stated in Reynolds v. United States, 98 U. S.
, 98 U. S.
"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 offense against society. "
Page 329 U. S. 19
As subsequently stated in Mormon Church v. United
States, 136 U. S. 1
136 U. S. 49
"The organization of a community for the spread and practice of
polygamy is, in a measure, a return to barbarism. It is contrary to
the spirit of Christianity, and of the civilization which
Christianity has produced in the western world."
And see Davis v. Beason, 133 U.
. Polygamy is a practice with far more pervasive
influences in society than the casual, isolated transgressions
involved in the Caminetti
case. The establishment or
maintenance of polygamous households is a notorious example of
promiscuity. The permanent advertisement of their existence is an
example of the sharp repercussions which they have in the
community. We could conclude that Congress excluded these practices
from the Act only if it were clear that the Act is confined to
commercialized sexual vice. Since we cannot say it is, we see no
way by which the present transgressions can be excluded. These
polygamous practices have long been branded as immoral in the law.
Though they have different ramifications, they are in the same
genus as the other immoral practices covered by the Act.
The fact that the regulation of marriage is a state matter does
not, of course, make the Mann Act an unconstitutional interference
by Congress with the police powers of the States. The power of
Congress over the instrumentalities of interstate commerce is
plenary; it may be used to defeat what are deemed to be immoral
practices, and the fact that the means used may have "the quality
of police regulations" is not consequential. Hoke v. United
States, 227 U. S. 308
227 U. S. 323
see Athanasaw v. United States, 227 U.
; Wilson v. United States, 232 U.
Petitioners' second line of defense is that the requisite
purpose was lacking. It is said that those petitioners who already
had plural wives did not transport them in interstate commerce for
an immoral purpose. The test laid
Page 329 U. S. 20
down in the Mortensen
case was whether the
transportation was in fact "the use of interstate commerce as a
calculated means for effectuating sexual immorality." 322 U.S. p.
322 U. S. 375
There was evidence that this group of petitioners, in order to
cohabit with their plural wives, found it necessary or convenient
to transport them in interstate commerce, and that the unlawful
purpose was the dominant motive. In one case, the woman was
transported for the purpose of entering into a plural marriage.
After a night with this petitioner, she refused to continue the
plural marriage relationship. But guilt under the Mann Act turns on
the purpose which motivates the transportation, not on its
accomplishment. Wilson v. United States, supra,
232 U. S.
It is also urged that the requisite criminal intent was lacking,
since petitioners were motivated by a religious belief. That
defense claims too much. If upheld, it would place beyond the law
any act done under claim of religious sanction. But it has long
been held that the fact that polygamy is supported by a religious
creed affords no defense in a prosecution for bigamy. Reynolds
v. United States, supra.
Whether an act is immoral within the
meaning of the statute is not to be determined by the accused's
concepts of morality. Congress has provided the standard. The
offense is complete if the accused intended to perform, and did in
fact perform, the act which the statute condemns -- viz.,
the transportation of a woman for the purpose of making her his
plural wife or cohabiting with her as such.
We have considered the remaining objections raised, and find
them without merit.
MR. JUSTICE BLACK and MR. JUSTICE JACKSON think that the cases
should be reversed. They are of opinion that affirmance requires
extension of the rule announced
Page 329 U. S. 21
in the Caminetti
case, and that the correctness of that
rule is so dubious that it should at least be restricted to its
* Together with No. 13, Cleveland v. United States;
14, Cleveland v. United States;
No. 15, Darger v.
No. 16, Jessop v. United States;
17, Dockstader v. United States;
No. 18, Stubbs v.
and No.19, Petty v. United States,
certiorari to the same court.
The Church of Jesus Christ of Latter-Day Saints has forbidden
plural marriages since 1890. See Toncray v. Budge,
Idaho 621, 654, 655, 95 P. 26.
Petitioners' activities extended into Arizona, California,
Colorado, Idaho, Utah, and Wyoming.
"Of women: The offering of the body to indiscriminate lewdness
for hire (esp. as a practice or institution); whoredom, harlotry."
8 Oxford English Dictionary 1497.
"Vicious indulgence in sensual pleasures." 3 Oxford English
Dictionary 79; "Excessive indulgence in sensual pleasures of any
kind; gluttony; intemperance; sexual immorality; unlawful
indulgence of lust." 3 Century Dict.Rev.Ed. 1477.
Blackstock v. United States,
261 F. 150; Carey v.
265 F. 515; Elrod v. United States,
266 F. 55; Burgess v. United States,
54 App.D.C. 71, 294
F. 1002; Corbett v. United States,
299 F. 27; Hart v.
11 F.2d 499; Ghadiali v. United
17 F.2d 236; United States v. Reginelli,
F.2d 595; Poindexter v. United States,
139 F.2d 158;
Simon v. United States,
145 F.2d 345; Qualls v. United
149 F.2d 891; Sipe v. United States,
U.S.App.D.C.194, 150 F.2d 984; United States v.
Chaplin, 54 F. Supp.
MR. JUSTICE RUTLEDGE, concurring.
I concur in the result. Differences have been urged in
petitioners' behalf between these cases and Caminetti v. United
States, 242 U. S. 470
them, in my opinion, it would be impossible rationally to reverse
the convictions at the same time adhering to Caminetti and later
decisions perpetuating its ruling. [Footnote 2/2
It is also suggested, though not strongly urged, that
was wrongly decided, and should be overruled.
Much may be said for this view. In my opinion, that case and
subsequent ones following it extended the Mann Act's coverage
beyond the congressional intent and purpose, as the dissenting
opinion of Mr. Justice McKenna convincingly demonstrated. 242 U.S.
at 242 U. S. 496
] Moreover, as I
Page 329 U. S. 22
also think, this legislation and the problems presented by the
cases arising under it are of such a character as does not allow
this Court properly to shift to Congress the responsibility for
perpetuating the Court's error.
Notwithstanding recent tendency, the idea cannot always be
accepted that Congress, by remaining silent and taking no
affirmative action in repudiation, gives approval to judicial
misconstruction of its enactments. See Girouard v. United
States, 328 U. S. 61
. It is
perhaps too late now to deny that, legislatively speaking, as in
ordinary life, silence in some instances may give consent.
] But it would be
going even farther beyond reason and common experience to maintain,
as there are signs we may be by way of doing, that, in legislation,
any more than in other affairs, silence or nonaction always is
acquiescence equivalent to action.
There are vast differences between legislating by doing nothing
and legislating by positive enactment, both in the processes by
which the will of Congress is derived and stated [Footnote 2/5
] and in the clarity and certainty of
the expression of its will. [Footnote
] And there are many reasons, other than to indicate
approval of what the courts have done, why Congress may fail to
take affirmative action to repudiate their misconstruction of its
duly adopted laws. Among them
Page 329 U. S. 23
may be the sheer pressure of other and more important business.
See Moore v. Cleveland R. Co.,
108 F.2d 656, 660. At
times, political considerations may work to forbid taking
corrective action. And, in such cases, as well as others, there may
be a strong and proper tendency to trust to the courts to correct
their own errors, see Girouard v. United States, supra,
328 U. S. 69
they ought to do when experience has confirmed or demonstrated the
The danger of imputing to Congress, as a result of its failure
to take positive or affirmative action through normal legislative
processes, ideas entertained by the Court concerning Congress'
will, is illustrated most dramatically perhaps by the vacillating
and contradictory courses pursued in the long line of decisions
imputing to "the silence of Congress" varied effects in commerce
clause cases. [Footnote 2/7
danger may be and often is equally present in others. More often
than not, the only safe assumption to make from Congress' inaction
is simply that Congress does not intend to act at all. Cf.
United States v. American Trucking Assn., 310 U.
, 310 U. S. 550
At best, the contrary view can be only an inference, altogether
lacking in the normal evidences of legislative intent and often
subject to varying views of that intent. [Footnote 2/8
] In short, although recognizing that, by
silence, Congress at times may be taken to acquiesce and thus
approve, we should be very sure that, under all the circumstances
of a given situation, it has done so before we so rule, and thus at
once relieve ourselves from and
Page 329 U. S. 24
shift to it the burden of correcting what we have done wrongly.
The matter is particular, not general, notwithstanding earlier
exceptional treatment and more recent tendency. Just as dubious
legislative history is, at times, much overridden, so also is
silence or inaction often mistaken for legislation.
I doubt very much that the silence of Congress in respect to
these cases, notwithstanding their multiplication and the length of
time during which the silence has endured, can be taken to be the
equivalent of bills approving them introduced in both houses,
referred to and considered by committees, discussed in debates,
enacted by majorities in both places, and approved by the
executive. I doubt, in other words, that, in view of all the
relevant circumstances, including the unanticipated consequences of
the legislation, [Footnote 2/9
such majorities could have been mustered in approval of the
decision at any time since it was rendered. Nor
is the contrary conclusion demonstrated by Congress' refusal to
take corrective action. [Footnote
case, however, has not been overruled,
and has the force of law until a majority of this Court may concur
in the view that this should be done and take action to that
effect. This not having been done, I acquiesce in the Court's
Counsel has emphasized the religious aspect presented by these
cases, and has stressed the familial aspect and purpose of
so-called "celestial marriage" in the Mormon conception, as
distinguishing the relation in fact and in consequence, from such
as were involved in the Caminetti
and other Mann Act
cases. The argument from religious motivation has been foreclosed,
so far as legislative power is concerned, since Reynolds v.
United States, 98 U. S. 145
Apropos of the Mann Act's application, the relationship is not only
illegal under state law, but also as regular and continuous as that
involved in Caminetti,
or more so.
See e.g., Gebardi v. United States, 287 U.
; United States v. Reginelli,
595; Christian v. United States,
28 F.2d 114. Compare
United States v. Beach, 324 U. S. 193
Mortensen v. United States, 322 U.
the dissenting opinion of Mr. Justice Murphy
herein. The dissenting opinion in the Caminetti
joined by the Chief Justice and Mr. Justice Clarke. Only five
justices adhered to the majority opinion, Mr. Justice McReynolds
not participating. Cf.
the opinion of Mr. Justice McKenna
in Athanasaw v. United States, 227 U.
As an original matter, in view of the specific and
constitutional procedures required for the enactment of
legislation, it would seem hardly justifiable to treat as having
legislative effect any action or nonaction not taken in accordance
with the prescribed procedures.
See 329 U.S.
fn2/4|>note 4. Legislative intent derived from nonaction
or "silence" lacks all the supporting evidences of legislation
enacted pursuant to prescribed procedures, including reduction of
bills to writing, committee reports, debates, and reduction to
final written form, as well as voting records and executive
approval. Necessarily also, the intent must be derived by a form of
negative inference, a process lending itself to much guesswork.
See 329 U.S.
See Prudential Ins. Co. v. Benjamin, 328 U.
, 328 U. S. 424
Ribble, State and National Power Over Commerce (1937) c. X; Bikle,
The Silence of Congress (1927) 41 Harv.L.Rev. 200; Powell, The
Validity of State Legislation under the Webb-Kenyon Law (1917) 2
So.L.Rev. 112. An example of judicial interpretation of the silence
of Congress as giving consent to state legislation is Wilson v.
McNamee, 102 U. S. 572
102 U. S. 575
Cf. 329 U.S.
opinion of Mr. Justice McKenna, 242 U.S. at
242 U. S. 502
dissenting in Caminetti v. United States; see also
dissenting opinion in United States v. Beach, 324 U.
, 324 U. S.
Since the Caminetti
decision, two bills have been
introduced to limit the effect of that case. S. 2438, 73d Cong., 2d
Sess.; S. 101, 75th Cong., 1st Sess. Neither was reported out of
committee. In such circumstances, the failure of Congress to amend
the Act raises no presumption as to its intent. Order of
Railway Conductors of America v. Swan,
152 F.2d 325, 329.
MR. JUSTICE MURPHY, dissenting.
Today another unfortunate chapter is added to the troubled
history of the White Slave Traffic Act. It is a
Page 329 U. S. 25
chapter written in terms that misapply the statutory language
and that disregard the intention of the legislative framers. It
results in the imprisonment of individuals whose actions have none
of the earmarks of white slavery, whatever else may be said of
their conduct. I am accordingly forced to dissent.
The statute, in so many words, refers to transportation of women
and girls across state lines "for the purpose of prostitution or
debauchery, or for any other immoral purpose." The issue here is
whether the act of taking polygamous or plural wives across state
lines or taking girls across state borders for the purpose of
entering into plural marriage constitutes transportation "for any
other immoral purpose," so as to come within the interdict of the
The Court holds, and I agree, that, under the ejusdem
rule of statutory construction, the phrase "any other
immoral purpose" must be confined to the same class of unlawful
sexual immoralities as that to which prostitution and debauchery
belong. But I disagree with the conclusion that polygamy is "in the
same genus" as prostitution and debauchery, and hence within the
phrase "any other immoral purpose," simply because it has sexual
connotations and has "long been branded as immoral in the law" of
this nation. Such reasoning ignores reality, and results in an
unfair application of the statutory words.
It is not my purpose to defend the practice of polygamy, or to
claim that it is morally the equivalent of monogamy. But it is
essential to understand what it is, as well as what it is not. Only
in that way can we intelligently decide whether it falls within the
same genus as prostitution or debauchery.
There are four fundamental forms of marriage: (1) monogamy; (2)
polygamy, or one man with several wives; (3) polyandry, or one
woman with several husbands, and (4) group marriage. The term
"polygamy" covers both
Page 329 U. S. 26
polygyny and polyandry. Thus, we are dealing here with polygyny,
one of the basic forms of marriage. Historically, its use has far
exceeded that of any other form. It was quite common among ancient
civilizations, and was referred to many times by the writers of the
Old Testament; even today, it is to be found frequently among
certain pagan and non-Christian peoples of the world. We must
recognize, then, that polygyny, like other forms of marriage, is
basically a cultural institution rooted deeply in the religious
beliefs and social mores of those societies in which it appears. It
is equally true that the briefs and mores of the dominant culture
of the contemporary world condemn the practice as immoral, and
substitute monogamy in its place. To those beliefs and mores, I
subscribe, but that does not alter the fact that polygyny is a form
of marriage built upon a set of social and moral principles. It
must be recognized and treated as such.
The Court states that polygamy is "a notorious example of
promiscuity." The important fact, however, is that, despite the
differences that may exist between polygamy and monogamy, such
differences do not place polygamy in the same category as
prostitution or debauchery. When we use those terms, we are
speaking of acts of an entirely different nature, having no
relation whatever to the various forms of marriage. It takes no
elaboration here to point out that marriage, even when it occurs in
a form of which we disapprove, is not to be compared with
prostitution or debauchery, or other immoralities of that
The Court's failure to recognize this vital distinction, and its
insistence that polygyny is "in the same genus" as prostitution and
debauchery, do violence to the anthropological factors involved.
Even etymologically, the words "polygyny" and "polygamy" are quite
distinct from "prostitution," "debauchery," and words of that ilk.
There is thus no basis in fact for including polygyny within
Page 329 U. S. 27
phrase "any other immoral purpose" as used in this statute.
One word should be said about the Court's citation of United
States v. Bitty, 208 U. S. 393
the statement that the interpretation of the statute there involved
is a forceful precedent for the construction of the White Slave
Traffic Act. The thought apparently is that the phrase "any other
immoral purpose," appearing in the White Slave Traffic Act, was
derived from the identical phrase used in the statute regulating
the immigration of aliens into the United States, the statute which
was under consideration in the Bitty
case. 34 Stat. 898.
That case concerned itself with the portion of the immigration
statute forbidding "the importation into the United States of any
alien woman or girl for the purpose of prostitution, or for any
other immoral purpose." Significantly, however, the statute made
separate provision for the exclusion of "polygamists, or persons
who admit their belief in the practice of polygamy." Thus, the
phrase "any other immoral purpose," following the reference to
prostitution, certainly did not comprehend polygamy. And, if that
statute, or the interpretation given it in the Bitty
is to be any authority here, the conclusion to be drawn is
inconsistent with the result reached by the Court today. As a
matter of fact, Congress has always referred to polygamy by name
when it desired to deal with that subject, as distinguished from
immoralities in the nature of prostitution. See, for
8 U.S.C. § 364; 18 U.S.C. § 513.
The result here reached is but another consequence of this
Court's long continued failure to recognize that the White Slave
Traffic Act, as its title indicates, is aimed solely at the
diabolical interstate and international trade in white slaves, "the
business of securing white women and girls and of selling them
outright, or of exploiting them for immoral purposes." H.Rep. No.
47, 61st Cong., 2d Sess., p. 11; S.Rep. No. 886, 61st Cong., 2d
Page 329 U. S. 28
p. 11. The Act was suggested and proposed to meet conditions
which had arisen in the years preceding 1910 and which had revealed
themselves in their ugly details through extensive investigations.
The framers of the Act specifically stated that it is not directed
at immorality in general; it does not even attempt to regulate the
practice of voluntary prostitution, leaving that problem to the
various states. Its exclusive concern is with those girls and women
who are "unwillingly forced to practice prostitution" and to engage
in other similar immoralities and "whose lives are lives of
involuntary servitude." Ibid.
A reading of the legislative
reports and debates makes this narrow purpose so clear as to remove
all doubts on the matter. And it is a purpose that has absolutely
no relation to the practice of polygamy, however much that practice
may have been considered immoral in 1910.
Yet this Court, in Caminetti v. United States,
242 U. S. 470
over the vigorous dissent of Justice McKenna in which Chief Justice
White and Justice Clarke joined, closed its eyes to the obvious and
interpreted the broad words of the statute without regard to the
express wishes of Congress. I think the Caminetti
be factually distinguished from the situation at hand, since it did
not deal with polygamy. But the principle of the Caminetti
case is still with us today -- the principle of interpreting and
applying the White Slave Traffic Act in disregard of the specific
problem with which Congress was concerned. I believe the issue
should be met squarely, and the Caminetti
It has been on the books for nearly 30 years, and its age does not
justify its continued existence. Stare decisis
does not require a court to perpetuate a wrong for which it was
responsible, especially when no rights have accrued in reliance on
the error. Cf. Helvering v. Hallock, 309 U.
, 309 U. S.
-122. Otherwise, the error
Page 329 U. S. 29
is accentuated, and individuals, whatever may be said of their
morality, are fined and imprisoned contrary to the wishes of
Congress. I shall not be a party to that process.
The consequence of prolonging the Caminetti
is to make the federal courts the arbiters of the morality of those
who cross state lines in the company of women and girls. They must
decide what is meant by "any other immoral purpose" without regard
to the standards plainly set forth by Congress. I do not believe
that this falls within the legitimate scope of the judicial
function. Nor does it accord the respect to which Congressional
pronouncements are entitled.
Hence, I would reverse the judgments of conviction in these