History of Salt Lake City, Part 142

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194

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In the fail of 1880, a mandamus suit was commenced in the Supreme Court of this Territory against Robert T. Burton, Assessor of Salt Lake County, by which it was sought to compel him to strike from the registration list the names of all the female voters, which was in effect, an attempt to disfranchise the women of Utah. Richards & Williams appeared, with other counsel, for the de- fense. The case was dismissed and the right of suffrage preserved to the women.

In the spring of 1881 Mr. Richards was admitted to the bar of the Supreme Court of Cali- fornia. In the succeeding autumn the partnership of Richards & Williams was dissolved. The firm had taken a high professional rank, but Mr. Richards had found the general business too great a task upon him when coupled with his duties as church counsel and his continuous researches into constitutional law. When he withdrew from this connection he practically abandoned the most lu- crative branch of legal work; in order to pursue studies and analyses of national powers and the in- alienable rights of individuals.

A call was made for a Constitutional Convention, in 1882, to seek the admission of Utah into the Union. With this event the greater period of Mr. Richards' life opened, for it called him to Washington as one of the delegation to present the constitution, brought him into association with the renowned legist, Jere S. Black, and drew him to the front as a political leader in the People's party.

He was elected a delegate to that convention from Weber County, was chairman of the commit- tee on executive department and was a member of the committee on revision and consoli- dation, which reported the constitution to the convention, he taking an active part in its con- struction and in all the business of the convention. He was also elected as one of the delegates to present the constitution to Congress. In company with Hons. John T. Caine and D. H. Peery, he started for Washington, June 12th, and labored with the delegation to the com- pletion of all that could be accomplished that season. During his sojourn in Washington, he made the aquaintance of many of the senators and representatives and while there met Judge Black, who came to the capital to see him on legal business in behalt of the people of Utah. Several days were spent with the judge in consultation. Our young advocate evidently made a favorable impression upon the venerable chief among American constitutional lawyers. With his nice sagacity of long experience, Judge Black discerned in a moment that he could read and study the peculiar case of the Mormon people with exactness from the ingenious mind of the young Mormon advocate. He realized that he was consulting with one who understood all the inner views of his people and all the relations of their case, and at the same time had a legal mind, and a knowledge of rights and reme- dies which enabled him to thoroughly comprehend the principles of constitutional law.

The judge returned to his home at York, Pennsylvania ; and in a few days Mr. Richards fol- lowed him in acceptance of an invitation. On his arrival at York he was met by the judge and taken to his home-a beautiful country seat about two miles from the central part of the town. There he remained for several days with the judge's family, treated with marked consideration, spending the time from an carly hour till late in the evening in consultation upon the great constitutional question of the rights and remedies of the people of Utah. Their conference embraced the whole situation, including congressional legislation and the relation of this Territory and its people to the General Government. There were three great questions for them to determine: First, the situation, involving a knowledge of the history of the people and of the local statutes ; second, to determine therefrom and from the laws of Congress what were the constitutional rights of the people ; next, the legal remedies, or how to maintain those constitutional rights.

The study of the case accomplished, the judge journeyed homeward with Mr. Richards as far as Chicago. The parting between the illustrious jurist and the young Utah lawyer was almost like that of compeers and old acquaintances, so warmly had the former become attached to the latter.

With the passing of the Edmunds Bill, Utah was deprived of her right to be represented in Congress by the delegate of her choice-George Q. Cannon ; and in the autumn of 1882, a con- vention of the People's party was held to nominate a successor. To fill the place of a keen diplo- mat like William H. Hooper or George Q. Cannon, a man of unusual strength and intelligence was

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required. For years Utah had enjoyed the fame of being more ably represented in Congress than any other Territory, and equally as well as any State in the Union ; and it was a point of honor as well as a necessity that this high reputation should not be lost Volumes could not say more of the personal and professional prestige of this young lawyer, Franklin S. Richards, than that he was con- fidently mentioned by many prominent and observant persons as the man for the occasion.

The convention met with Mr. Richards as a delegate. He was placed in nomination for Con- gress, and it was evident that his friends and admirers were determined to overlook his protest and secure his nomination, if possible. John T. Caine, a gentleman of long legislative experience. had also been frequently and vigorously advocated for the place. But before there was any opportunity to test the strength of the candidates in the convention, Mr. Richards restored complete harmony. He thanked his friends for the mark of their confidence, but positively declined, in a very neat and modest speech, the honor which they tendered him ; then he nominated the Hon. John T. Caine. and requested all his friends to give their support to this gentleman. 'The speech and conduct called forth murmurs of admiring surprise from the Utah Commissioners, who were present, and who thought it most uncommon for a young man of his talent and fitness to throw away so rare an opportunity, frankly preferring another man for so distinguished a mark of public favor. But in reality this was only a seeming sacrifice ; for Mr. Richards showed his good sense and indomitable purpose when he again chose the course of severe study and labor in his profession. It must be ap- parent to all who are acquainted with the legal history of the Mormon question during the past four years, that no political success possible of achievement by one of his people, could have com- pensated Franklin S. Richards for the loss of the experience and reputation which he has gained as the advocate of the Mormons in their struggle before the highest judicial tribunal on earth.

At this convention a new departure was made by the People's party, in the adoption of its first political platform. Mr. Richards was a member of the committee which drafted it, and in the cam- paign which followed, was one of its ablest exponents.

In the autumn of 1882, the now noted mandamus suit was planted against Judge Franklin D. Richards by James N. Kimball-a suit of supreme importance to the people of Utah as it directly involved almost every important office in the Territory. Franklin S was chief counsel for his fa- ther in this matter and with his associates succeeded in carrying the case to a satisfactory conclusion.

The latter part of November in the same year, with his colleagues, Hons. John T. Caine and D. H. Peery, he again went to Washington to present to Congress the constitution of the proposed State of Utah, and to ask the admission of the Territory into the Union. George Q. Cannon, whose politcal influence in Mormon affairs had not declined at the capital, accompanied the delega- tion. There was no real expectation that statchood would be granted at that time ; but the ap- plication gave to the Utali question a fresh interest. It also afforded to Judge Black an opportunity to deliver before the Judiciary Committee of the House of Representatives his great constitutional argument upon "Federal Jurisdiction in the Territories." This splendid effort is a virtual arraign- ment of the Edmunds Bill ; and in its pure democratic genius is a grand reminder of the golden age of the American Republic. Our young lawyer was with Judge Black constantly during the month that the argument was under preparation ; and it is not difficult to trace his ardent, loyal thought for his people in its pages, nor to realize that the profound legist must have taken great delight in the in- spiration afforded by such an interested representative.

The friendship between the great Jere S. Black and Mr. Richards was most sincere. The ven- erable jurist suggested the introduction of young Franklin to the bar of the Supreme Court of the United States ; and he made the motion upon which the order was entered on the 30th day of Jan- uary, 1883, admitting our Utah lawyer to practice before that august tribunal.

Before the close of February, 1883, the labors of Mr. Richards at Washington were completed for the time being ; and he journeyed homeward, traveling from New York to Utah with Serjeant William Ballantine, the famous English barrister, and Mr. Phil. Robinson. These gentlemen were making a visit of observation to the Zion of the Rocky Mountains; and the serjeant cagerly seized the opportunity of conversing with the Mormon advocate. Before they parted the eminent Eng- lishman promised that the enlightenment which he had received should be used to illuminate the Mormon question in high circles of the mother country.

On the 19th day of August, 1883, at his home in York, Pennsylvania, Jere S. Black died, and the people of Utah were deprived of one of their bravest, truest friends, and this Nation lost a pure patriot and one of its greatest constitutional lawyers.

Through the attempted arbitrary disfranchisement of thousands of citizens by the Utah Com- mission, political complications arose; and as Judge Black was dead it became now desirable to

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sccure the services of some other eminent and able lawyer ; and in October, 1883, Mr. Richards, with George Q. Cannon and John T. Caine, journeyed to Washington. Senator Vest was retained as counsel for the cause of the people of Utah before the courts. During this visit to the East, Mr. Richards renewed his acquaintance with General Thomas L. Kane, whose death in that same year filled thousands of hearts in Utah with sorrow.

Mr. Richards returned to his home in the latter part of November, and about the Ist of Jan- ary, 1884, he again took his departure for Washington with Hon. Moses Thatcher, to labor in be- half of the people of Utah. He was obliged to leave the national capital in less than a month to take part in the legislative proceedings at Salt Lake, he having been elected to the council from Weber and Box Elder Counties at the August elect on preceding. He was not able to reach Salt Lake until after the opening of the session ; but he had been appointed chairman of the judiciary committee, and immediately upon taking his seat he assumed a prominent and active part in the labors of the Legislature.

On the 18th day of March, 1884, he was appointed city attorney for Salt Lake. He has held the position ever since, having been re-appointed by the new municipal government which came into office in February, 1886. When he accepted this position lie removed from Ogden to Salt Lake; thus after fifteen years of absence, he became once more a resident of his native city.

In October, 1884, Mr. Richards appeared as one of the counsel for Rudger Clawson, charged before the Third District Court with polygamy and unlawful cohabitation. The defendant was con- victed ; but a certificate of probable cause was obtained from the judge who presided at the trial and the case was appealed to the Supreme Court of the Territory. Bail was applied for, pending appeal, but was refused ; and a writ of habeas corpus was sued out and the question was appcaled to the Supreme Court of the United States. In December, Mr. Richards went to Washington and with Wayne Mac Veagh, ex-Attorney General of the United States, presented the matter before that tribunal. This case possesses a great and growing historical value, and an epitome of some of the points raised by the Utah advocate are not inappropriate here :

Under the statute the certificate of probable cause stayed the execution of the judgment The punishment prescribed by the sentence could not possibly proceed against the defendant pending his appeal without a most flagrant violation of the law, The only place of imprisonment over which the U. S. Marshal had any jurisdiction was the penitentiary ; and when bail was refused, awaiting the result of the appeal and Rudger Clawson was incarcerated there, he was subjected to the same punishment as would have been suffered by him in actual fulfillment of the sentence. Thus the right of appeal, instead of being a boon was made a burden ; for if the judgment should not be reversed, on the theory of the prosecution he was not to be credited upon the judgment with the time of such imprisonment. It would, therefore, speaking merely in a personal sense, have been better for Rudger Clawson to submit to the judgment of the court, however illegal and unjust it might be, than to stay the execution and prosecute his appeal in what might prove to be an illusory hope of gaining redress. Under such a manifestly unjust ruling, if a defendant were sentenced to deatlı, and pending his appcal upon a certificate of probable cause, were to be subjected to the identical punishment prescribed in the sentence, he might be executed at the very hour when a superior tri- bunal was reversing the judgment of the trial court. A judicial murder would be perpetrated. It is true that in Utah the law accords to judges discretionary power in allowing bail after con- viction ; but for more than a third of a century it had been the uniform practice in Utah courts to use that discretion mercifully, and to allow the defendant his freedom under bonds until his case had been finally decided. Further than this, in face of the statutory declaration that the granting of a certificate of probable cause shall stay the exccution, the refusal of the court to admit to bail was illegal and inhuman.

The Supreme Court of the United States avoided the issue and declined to review the exercise of discretionary power by the trial judge. From this opinion Justices Miller and Field, the two oldest and ablest judges on the bench, dissented and stated that the refusal to admit Rudger Claw- son to bail was the arbitrary refusal to grant him what was expressly accorded to him by statute.

Mr. Richards next appeared in the Supreme Court with the "Commissioners Cases," in which Senator Vest had already been retained and in which Wayne Mac Veagh also appeared. Franklin did not address the court orally in this case; but he took his usual active part in the preparation of the brief and arguments. The most important points raised in these famous causes were as follows :

Under section viii. of the Edmunds Bill, and by an autocratic wholesale disfranchisement, the Utah Commission excluded from political privileges about twelve thousand citizens of this Territory. Among these were thousands who were no longer living in polygamy or unlawful cohabitation ; and

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the names of these as well as of all others disfranchised were stricken from the registration lists be- cause they failed to take the test oath formulated by the Commission. Certain citizens thus arbi- trarily deprived of political rights brought suit against the commissioners and their appointees. The lower courts ruled adversely to the citizens and the cases, now known under the abbreviated title of "Murphy and others vs. Ramsey and others," were carried to the Supreme Court of the United States. It was argued for the appellants that the law was made to operate as a bill of attainder and therefore as an unconstitutional measure; for it punished people without trial. Further, the act was interpreted as an ex post facto law, also under constitutional prohibition ; for people were ex- cluded from office and denied the ballot, who for thirty years had not lived in polygamy nor unlaw- ful cohabitation. Notwithstanding the fact that in a former case the Supreme Court had held that the deprivation of a political right for past conduet was punishment; it was declared in these "Commissioners Cases" that the disfranchisement was not punishment, and the eighth section of the act was not a bill of attainder, for the only punitive provisions of the statute were in the first and third sections, and the eighth section merely defined a proscribed status. But the court held that the law was operated as an ex post facto measure wherein it was made to disfranchise people who were not living in actual violation of the statute at the time when they applied for registration. If the entire theory of the counsel for the appellants had been accepted by the Supreme Court, no per- son could have been deprived of his political rights under this bill until he had been judicially proven to be a polygamist, or bigamist, or to be living in the practice of unlawful cohabitation. As it was, doubtless some thousands of people were restored to their political privileges.

In April, 1885, Mr. Richards was again at Washington with Wayne MaeVeagh arguing the case of Rudger Clawson on its merits before the Supreme Court. The important questions involved were whether the grand jury which found the indictment and the petit jury which sat in the case were legal juries. The grand jury was made up, by careful selection, of the avowed social oppo- nents and political enemies of the defendant. Every Mormon had been excluded from the jury; al- though many Mormons when called had declared that, while they might have personal faith in the righteousness of polygamy, they would not hesitate to find indictment wherever the evidence showed a violation of law. It was maintained that this exclusion was illegal ; for the rejected men pos . sessed all the statutory qualifications. The only law quoted in justification of their exclusion was section v. of the Edmunds Bill, providing that believers in polygamy, etc., could not serve in prose- cutions for those offenses. But the impaneling of the grand jury was not a " prosecution for po- lygamy." It was a proceeding had prior to the beginning of a prosecution ; and was not under any statute of the United States, for the impaneling of grand juries is governed entirely by Territorial law. Further, this grand jury was impaneled to inquire-not alone into violations of the Edmunds act, but into all offences against the commonwealth ; and yet the entire representation upon the jury was given to a class possessing less than one-fifth of the population. Objection was made to the manner of obtaining the trial jury, which was by open venire, when the statute provided another method for selecting and drawing jurors. The open venire system is an outrage in any land aiming at purity in its judicial tribunals. Armed with the open venire, the marshal may become almost the absolute autocrat of verdicts. From whim or venal purpose he may summon either the friends or enemies of the accused in a criminal case, or the friends or enemies of either party in a civil contest.

The Supreme Court affirmed the decision of the lower court ; and Rudger Clawson is now serving the sentence imposed upon him.

With the exception of the sporadic prosecutions against Rudger Clawson, the earlier efforts of Federal officials seemed centered upon making the Edmunds law an effective political weapon. The first general application of any portion of the bill was of section viii. with the wholesale polit- ical proscriptions attempted thereunder. It was not until the people of Utah had demonstrated that the public offices of the Territory could not be wrested from them by persons arbitrarily and un. necessarily appointed, and that the disfranchisement of twelve thousand of their number could not give the Territory over to "Liberal" rule, that a vigorous and systematic plan was projected for crim - inal prosecutions against Mormons for infractions of the first and third sections of the act. These prosecutions were doubtless all the more unrelenting because of political failure. And early in 1885. what is commonly known as the "raid" was emphatically begun.

The extent to which the people could be assailed by political proscriptions, under section viil. had been defined by the Supreme Court ; but there had been no such authoritative declaration of how far the people might be assailed by criminal prosecutions. A definition was wanted for the word " cohabit " As it originally stood in the bill it seemed simple enough ; but when the Utah

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Commission had attached to it the words, " in the marriage relation," it becan e cor sicerably mys- tified ; and when the courts of the Territory had given their various ambiguous interpretations, it became confusion worse confounded. Under these circumstances an authoritative construction be- came necessary ; and in September, Mr. Richards went to Washington to secure a writ of error in the case of Angus M. Cannon and to have that cause advanced in the Supreme Court. Although it was believed by the bar very generally that the case was not appealable, and the writ had been refused by the Chief Justice of the Supreme Court of the Territory, Mr. Richards succeeded in ob- taining the writ from Justice Miller, and in securing the advancement of the cause. In November, 1885, the case eame on for hearing, and Mr. Richards made a long and very powerful argument. Some of the salient points were these :

Angus M. Cannon, during the time charged in the indictment, had lived in the same house with two of his wives, but had ceased to occupy the bed of one of them. Indeed, his counsel on the trial offered to prove that no sexual intercourse had taken place between the defendant and his plural wife; but such proffered proof was rejected by the court. Mr. Richards maintained that a precedent could not be found where anything less than sexual intercourse had been held to be criminal co- habitation. He challenged the Government to quote any such case; but it was conceded that none existed. The Utah advocate reminded the court that this bill was vannted as a moral measure for the sexual purification of the Nation. The language of the act was general and had an ostensible claim to fairness. And yet, under the partial construction given by the lower courts to the plain words " cohabit with more than one woman," a man might live openly and notoriously with two or a dozen women and call them mistresses; he might eat and sleep with them: might ac- knowledge their children to be his own; might flaunt his lasciviousness in the faces of judges, prose- cutors and grand jurors, and their wives, mothers and daughters-and this boasted law to protect the sanctity of American homes could not touch him : but if he dwelt under the same roof with two wo- men and called them his wives-though he should never have sexual intercourse with either of them ; though he should never intrude his family affairs upon the sensitive morality of the public; though he should merely retain the passive status of the polygamist, which status this Supreme Court has said he need not terminate-he would be brought before the courts, and, regardless of age or cir- cumstances, would be thrust into a vile corral, disgracing the name of government prison, to be the companion of degraded and desperate felons. Thus arises the pertinent inquiry : "Is it actions or words which the law declares against ?" Two men live in a similar manner-each cohabiting with three women. One says, " mistresses," and he is a free voter ; the other says, " wives " and he is a disfranchised convict. Mr. Richards, in the most moving terms, besought the Supreme Court to give to the term cohabitation a clear, fixed and humane definition, that people honestly seeking to understand the law might have some interpretation to rely upon which would be more trustworthy than the shifting, evasive, treacherous meanings given to the word by the lower courts.

This latter point the Supreme Court utterly ignored. The decision affirmed the judgment of the lower court ; but Justices Field and Miller dissented upon the ground stated in the argument cf Mr. Richards, that- according to all precedent, criminal cr habitation implied sexual intercourse.

In April, 1886, Mr. Richards was once more at Washington presenting to the Supreme Court the three cases of Lorenzo Snow for unlawful cohabitation. Some of the notable features of these causes and their trial in the lower courts were raised as follows : One alleged offence covering one continuous space of time was segregated into three charges, each covering an arbitrary period-thus making three punishments where at most but one could have been legally and justly inflicted. Also, the defendant was proved not to have lived with more than one woman during the time charged in any of the indictments. It was admitted by the defendant that he recognized and "held out " the women named in the indictments as his wives; but at the same time it was proved by incontrover- tible evidence that the parties had not lived together. And, as the definition of cohabitation promul- gated from the Supreme Court is " the living together as husband and wife," it was maintained that

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History of Salt Lake City, Part 142

Author: Tullidge, Edward Wheelock Publication date: 1886 Publisher: Salt Lake City, Star printing company Number of Pages: 1194

Author: Tullidge, Edward Wheelock
Publication date: 1886
Publisher: Salt Lake City, Star printing company
Number of Pages: 1194