History of Salt Lake City, Part 20

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

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But the Mormon leaders were so incensed at the action of Douglass that it be- came impossible for him to prompt the Senate to an investigation of Utah affairs by a commission. An irreconcilable breach was made. The Deseret News (un- doubtedly speaking with Governor Young's voice) replied to the speech, and the Illinois statesman was reminded of the time when he was " but a county judge," and when the Prophet Joseph told him that he would some day be an aspirant for the chair of Washington; that, if he continued the friend of the Mormons, he should live to be President of the United States; but if he ever lifted his finger or his voice against them, his plans should be frustrated and his hopes utterly dis- appointed. All this, the successor of the Mormon Prophet circumstantially re- lated to the senator in reply to his Springfield speech and closed in the name of the Lord, with the prediction that Douglass should fail, and never attain the goal of his ambition.

The prediction of the Mormon Prophet in his conversation with Douglass is singularly authentic and was published years before the Illinois Senator recom- mended the Government to "cut the loathsome ulcer out," which recommenda- tion makes the story pertinent here as referring to Utah and the causes of the Buchanan expedition.

The Democratic convention meet in Cincinnati soon after the speech, and Senator Douglas was a candidate for the Presidency of the United States : Bu- chanan was nominated and Douglass defeated.

But neither the defeat of Douglass nor the triumph of Buchanan changed the "manifest destiny" that so singularly made Utah the political scapegoat of the times. She was declared to be the sister of the South, with a common fate, but the South had not yet chosen to recognize her. During that campaign, in the fall of 1856, Republicans carried the banner. hostile to polygamy, and Democrats

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made speeches against the same institution. The only difference was, that the Republicans saw more clearly, or sensed more instinctively than the Democrats, that the Mormons and the Democrats had a common cause and a common fate. In fine the political action in the country in the fall of 1856 left the Mormons no friends in any of the States and it was this very fact and not their right doings nor their wrong doings, in Utah that determined the Government to send the expedition.

On the 4th of March, 1857, Mr. Buchanan was inaugurated President of the United States, and he and his cabinet, like Douglas, was soon overwhelmed with the popular wave that rose at that time, to lash to fury in vain upon the Rocky Mountain Zion; but which, astonishingly to be told, immediately thereafter swept over the South and baptized the United States in the blood of civil war.

CHAPTER XVI.

REVIEW OF JUDGE DRUMMOND'S COURSE IN UTAH. HE ASSAULTS THE PRO- BATE COURTS AND DENOUNCES THE UTAH LEGISLATURE AT THE CAPI- TOL. JUDGE SNOW'S REVIEW OF THE COURTS OF THE TERRITORY. HIS LETTER TO THE COMPTROLLER OF THE TREASURY. JUDGE DRUMMOND LEAVES UTAH AND COMMENCES HIS CRUSADE. THE CONSPIRACY TO WORK UP THE " UTAH WAR." THE CONTRACTORS. CHARGES OF INDIAN AGENT TWISS. POSTAL SERVICE. CONTRACT AWARDED TO MR. HYRUM KIMBALL. GOVERNOR YOUNG ORGANIZES AN EXPRESS AND CARRYING COMPANY. NEW POSTAL SERVICE. WAR AGAINST UTAH. POSTOFFICE DEPARTMENT REPUDIATES ITS CONTRACT. "TROOPS ARE ON THE WAY TO INVADE ZION!"

Thus it appears in reviewing the political history of 1856, that the compli- cations of the nation herself, tending towards the great war conflict between the North and the South, drew Utah into the vortex, almost without any action of her own, whether good or bad ; but no military expedition could be sent against her without circumstantial causes. The charges of Drummond and Magraw were considered to be sufficient, which fact makes a review of themselves and their action in Utah affairs necessary to the development of the history of a crusade that cost the nation fifty millions of money, and, for awhile, threatened these valleys with desolation.

The following passage from a letter of a member of the Utah Legislature, Samuel W. Richards, to his brother in England, dated Fillmore City, December 7th, 1855, gives a very suggestive opening to Judge Drummond's administration in this Territory :

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" You have, no doubt, heard of the appointment and arrival of Judge Drum- mond in this Territory. He has lately been holding court in this place, which has given him an opportunity to show himself. * * He has brass to declare, in open court, that the Utah laws are founded in ignorance, and has attempted to set some of the most important ones aside. This being the highest compliment he has to pay to Utah legislators, we shall all endeavor to appreciate it, and he, no doubt from his great ability to judge the merits of law, will be able to appreciate the merits of a return compliment some day. His course and policy so far seein to be to raise a row if possible, and make himself notorious.

* *

" In speaking of Judge Drummond, I might have named the fact that he compliments a Mormon jury by taking his wife on to the judgment-seat with him, which she occupies almost constantly. There was one case, however, of such a character that she did not appear."

In a letter of a later date (January 5th, 1856,) the same correspondent- wrote.

" Some little excitement prevails in town to-day. An affair took place be- tween Judge Drummond and a Jew trader here, which was rather amusing at the time, but may be something more than fun for the Judge before he gets through with it. A grand jury is meeting this evening, which will bring in an indictment against the Judge and his negro, Cato, for assault and battery with intent to mur- der; and he will be arrested and brought before the probate court on Monday morning next, a 9 o'ctock, just at the time he should answer to his name in the supreme court, which sits at that hour. *

" He has virtually ruled our probate courts out of power in his decisions, but we will now know whether probate courts can act or not, especially in his case. * *

"Judges Kinney and Stiles, Babbitt, Blair, and nearly all the lawyers in the Territory, United States' Marshal, etc., are expected in here to-morrow, as the supreme court opens on Monday. There is only one case that I am aware of to come up before that court, and that of not much account. *

Evening.

" The party alluded to just above have arrived. A. W. Babbitt comes in a prisoner. He has been arrested by order of Judge Drummond, on the suppo- sition that he was concerned in the escape of Carlos Murray, who was brought here a prisoner some time since, but is not here now. There is quite an excite- ment in town about matters and things. I wish this letter was to go one week later, so as to give you the result of the present commotion, which will probably decide the jurisdiction of our probate courts."

The case of the "wife" was a greater outrage both to the government and the community than this indignant member of the Legislature knew at the time. Associate Justice Drummond had brought with him to the Territory a " lady companion," while his wife and family were left in Illinois. After the notice of his arrival had been published in the Deseret News, some of the relatives of Mrs. 5

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Drummond paid a visit to the judge's " companion," and, unfortunately for the honor of the bench, the "lady " from St. Louis did not answer to the descrip- tion of the wife in Oquawkee. The discovery was noised abroad, yet so shame- less was the conduct of this judge and his paramour that she traveled with him wherever he held court, and on some occasions sat beside him on the bench.

" Plurality of wives," comments Stenhouse, " was to the Mormons a part of their religion openly acknowledged to all the world. Drummond's plurality was the outrage of a respectable wife of excellent reputation for the indulgence of a common prostitute, and the whole of his conduct was a gross insult to the Gov- ernment which he represented, and the people among whom he was sent to admin- ister law. For any contempt the Mormons exhibited towards such a man, there is no need of apology."

Here is exhibited the very onset of the conflict, relative to the jurisdiction of the probate courts in this Territory, and the existence and business of a Terri- torial marshal, a conflict that continued to the days of Chief Justice Mckean ; but it is clear from the record that, whether the Utah Legislature made its laws in ignorance or not, it had shown no intent to subvert the federal rule, or to set aside United States Courts to give the jurisdiction to the probate courts; yet this is the very charge made against Governor Young and the Utan Legislature-namely, that they did both with intent and treason so set aside federal rule, substituting, an ecclesiastical rule under the guise of probate courts. "With regard to the affairs and proceeding of the probate court, (wrote Magraw to the President) the only existing tribunal in the Territory of Utah, there being but one of the three federal judges now in the Territory, I will refer you to its records, and to the evidence of gentlemen whose assertions cannot be questioned," while the asso- ciate justice wrote, "The judiciary is only treated as a farce. * It * is noonday madness and folly to attempt to administer the law in that Territory. The officers are insulted, harrassed and murdered for doing their duty, and not recognizing Brigham Young as the only lawgiver and lawmaker upon earth."

In the reverse of this the foregoing notes, from one of the legislators to his brother, show us a judge, who was sent to execute the laws of the Territory, rudely assaulting the lawmaking department and ruling out of power the probate courts, which it had endowed with a jurisdiction necessary to the commonwealth under peculiar circumstances. This conflict thus begun by Judge Drummond, in 1855-6, against the Territorial commonwealth, falsely interpreted to Buchanan's administration, is rendered in General Scott's instructions as "state of substan- tial rebellion against the laws and authority of the United States."

The burden of the subject resting then, at this point with the jurisdiction of our probate courts, and the Territorial business generally, it is needful that we enlarge the review of previous chapters relative to the reasons of the superior jurisdiction given to those courts, and the creation of the offices of Territorial Marshal, Attorney General and District Attorney. The reason in fine was the desertion of the Chief Justice and one of his associates, accompanied by the Sec- retary of the Territory and Indian Agent, carrying away all the government funds. It is not necessary to again review their conduct, or to reaffirm the jus- tification of Governor Young and the Mormon community, but simply to repeat

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the connecting cause of the powers which the legislature conferred upon the pro- bate courts and the creation of the Territorial officers. Associate Justice Snow was not set aside by the Legislature, but an enabling act was passed authorizing him to hold United States Courts in all the districts; at the same time jurisdic- tion was given to the probate courts in civil and criminal affairs in the interest of the commonwealth, lest it should be left altogether unable to administer in the departments of justice, which would have been the case at that moment had Associate Justice Snow died or left the Territory. Mr. Migraw himself uninten- tionally illustrated this point, when he told the President that the probate court was the only existing tribunal in Utah, "there being but one of the three federal judges now in the Territory." This was the exact case at the onset when the probate court was created.

Already extracts have been made from the correspondence between Judge Snow and the Hon. Elisha Whittlesey, who drew a strong line of demarcation between United States and Territorial business, making it absolutely necessary for the Territory to assume the responsibility and cost of its own business. This, however, the legislature did against its own judgment, holding that the Territorial District Courts were really United States Courts. Judge Snow, con- tinuing the correspondence, discussing the subject with the comptroller of the treasury in behalf of his court and the legislature, said in his letter of February 8, 1853:

" To enable you to fully understand the present situation of things, before proceeding further, I will inform you that the Legislative Assembly passed an act, approved October 4th, 1851, authorizing and requiring me, for a limited time, to hold all the courts in the Territory, but said nothing about jurisdiction, appellate or original. (See Utah Laws, p. 37.)

" February 4, 1852, another act was approved, giving jurisdiction to the dis- trict courts in all cases, civil and criminal, also in chancery. (See ib., p. 38, sec. 2.) The same law gave jurisdiction to the probate courts, civil and criminal, also in chancery. (See ib., p. 43, sec. 36.) An act was approved March 3d, 1852, providing for the appointment of a Territorial Marshal, Attorney General and District Attorneys, to attend to legal business in the district courts when the Ter- ritory should be interested. (See ib., pp. 56, 57.)

" I do not intend to be understood as expressing any opinion in relation to the legality of these several enactments, but I only mention them to enable you to understand the present views of the Legislative Assembly, as expressed in a report to which I shall soon refer. This report was called out by reason of the non-pay- ment of these costs. I having referred the claimants to the Legislative Assembly, they procured my certificate of their correctness and petitioned for payment. The petition was referred to a committee on claims, and, to enable that committee to understand the subject, the Council passed a resolution, requesting me to inform them of the amount of costs of holding the courts for the past year, distinguish- ing those which in my opinion should be paid by the general government from those payable by the Territory.

"With this request I complied, and gave the reasons of my opinion, acting

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on the principle that the reasons of an opinion are often of far more value than the opinion itself. In so doing I laid before them my correspondence with you, and referred to such of the laws of the United States as in my opinion had a bear- ing on the subject, and to the enactments. I also went minutely into the usual officers of the courts and expenses attendant upon them, and showed how these officers and courts are usually paid, in both civil and criminal cases, together with the payment of the incidental expenses, making my answer quite lengthy, too much so for insertion in this communication.

" This committee reported adversely to payment by the Territory, but upon what principle I have not been informed. The subject was then referred to a ju- diciary committee, composed of some of the best members of the council. This committee reported adversely to payment by the Territory, and gave their reasons. This report was adopted, therefore I proceed to notice the positions taken by them.

" They commence with what they call the equity of the principle involved in the question presented, saying that nearly all the costs of courts here have accrued by reason of emigration passing through here to California and Oregon, and that justice requires the United States to pay such expenses.

" My experience in the courts thus far justifies the firm belief that the facts here assumed are correctly stated. See my concluding remark in my letter of July IO. But with this equitable consideration, I am unable to see what I have to do, though I can see its bearing when addressed to the political branches of the gov- ernment by whom and to whom that matter was then addressed.

" 'They further take the position that the United States and the Territory of Utah respectively must sustain and bear the expenses, direct and incidental, of the officers and offices of its own creation, that the supreme and district courts were created, not by a law of Utah, but by a law of the United States ; and as such, by the Organic Act, they have jurisdiction, civil and criminal, in all cases not arising out of the constitution and laws of the United States, unless such jur- isdiction should be limited by a law of the Territory; that congress, by extend- ing the constitution and laws of the United States over the Territory, and creating courts and appointing officers to execute these laws, had done what was her right and duty to do, but, as she had seen fit to go further and give jurisdic- tion to her courts and require her officers to execute the laws of the Territory, it had become her duty to sustain these courts and officers, and bear their expenses; that the Territorial Legislature, by giving jurisdiction to these courts and divid- ing the Territory into districts, had done nothing but discharge a duty which Congress had required at their hands, but this did not require them to bear any part of the expenses; that these courts took jurisdiction in all cases, not by virtue of the Territorial laws, but by a law of Congress; that the Territories, by their Organic Acts, are not independent governments within the meaning of the term that all just powers emanate from the government, but are subordinate, de- dependent branches of government; that Congress did not intend to give any court jurisdiction in civil and criminal cases at common law and in chancery, but the supreme and district courts, and, as she had reserved the right to nullify any act of the Legislative Assembly, she could enforce obedience to her mandates ; that, with such a state of things, it is contrary to every principle of justice and

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sound legislation to require so dependent a branch of government to bear any part of the expenses of enforcing the laws; that the officers, having charge of that branch of public service, ought not to so construe the acts of Congress as to produce such results, so long as the long as the laws will admit of a construction consistent with justice and sound legislation; that, in their opinion, the acts of Congress did not require such a construction, but on the contrary they strongly indicated, if they did not require, the construction contended for by them ; and that the same principle which would require such dependencies to pay a part (of the expenses) would require them to pay the whole, and with that construction Congress might, at the expense of the Territories, impose upon them any embod- iment of officers she, in her discretion, might see fit to send, which never could have been intended by the framers of the constitution.

" This report concludes by recommending that these costs be referred to me, with the opinion of the council that they are payable out or the annual appro,- priations made by Congress for defraying the expenses of the circuit and district courts of the United States, and by recommending that the laws of Utah be so amended as to take away the jurisdiction of the probate courts at common law,. civil and criminal, and in chancery, and abolish the offices of territorial marshal, attorney-general, and district attorneys, so that the United States, by her judges, attorneys and marshals may execute the laws of the Territory. But, as this re- port was not made until a late day in the session, the laws were not so amended. Should the next Legislative Assembly in these matters concur with this, the laws above referred to will either be repealed or modified."

It will be seen by this report of the committee that the Utah Legislature, as early as 1852-3, desired to do what, after twenty years of conflict, was accom_ plished,-namely, to limit the jurisdiction of the probate court and to abolish those Territorial officers which had been created from necessity, "so that the United States, by her judges, attorneys and marshals may execute the laws of the Territory."

It appears, then, from this review made by Associate Justice Snow, long before the date of the Utah Expedition that the conflict which arose in the courts of Judges Drummond and Stiles, furnishing the most direct cause of said expedi- tion, was not in consequence of the Legislature desiring to limit the legitimate rule of the federal officers, much less to put the Territory in the attitude of re- bellion, but rather that Drmmond and others sought the conflict with the very design so soon afterwards expressed in the Utah war. Such, at least, was the opinion of the Mormon people.

In the Spring of 1857, Associate Justice Drummond went to Carson Valley ostensibly to hold court, instead of which he immediately left Carson for Cali- fornia to commence his crusade. As soon as he reached the Pacific Coast he made a fierce attack upon the Mormons in the papers of San Francisco. He next from New Orleans April 2, 1857, dispatched his resignation to the Govern- ment that it might reach Washington before the executive session adjourned. His exposure-much of it false and much of it exaggerated-added to the affidavit of Judge Stiles who was then in Washington, arroused Congress to demand im- mediate action.

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Meantime, while this war crusade was being worked up against Utah, she was making extraordinary efforts to bring herself into closer relations with the Eastern States, and a broader intercourse with the world generally. As already seen, early in the year 1856, she had made a grand demonstration for admission into the Union, and now the close of the year saw her undertaking a great en- terprise to aid the Government in its postal service, enlarge her own commerce, and establish a line of settlements between Great Salt Lake City and the Eastern

frontiers. One of the citizens of Utah, Mr. Hiram Kimball, had obtained the contract from the Post Office Department for the transportation of the United States mails across the plains between Independence, Missouri, and this city. Hitherto the postal service with Utah had been very unsatisfactory, the contracts being exceedingly low, which gave the contractors, who were only commercially interested in Utah, nothing of the citizen's impulse and ambition to perfect the mail service. Feramorz Little, indeed, as a sub-contractor, had on former occa- sions made exceedingly short time, but up to the letting of the contract to Mr. Hiram Kimball, the enterprising men of Salt Lake City, whose commercial facilities would be greatly enhanced by the organization of a grand carrying com- pany, had found no opportunity for such a design. The contract of Mr. Hiram Kimball amounted to only $23,600 for the mail service, but Governor Young saw in it the foundation of a gigantic express company, such as only he could possibly organize, having at his back an entire community who was so vitally concerned in the enterprise.

Locked out by deep snows on the mountains from nearly all intercourse with the Eastern States during the terrible winter of 1856, and almost as destitute of news from the Pacific, the Mormons had little idea of the stir which Utah had created everywhere throughout the Union since the former contractor, Magraw, had written his letter to the President of the United States, dated Independence, Missouri, October 3, 1856, since which time, they had received no mail; much · less did they know of the inception of the " contractors' war," as in the sequel the Utah Expedition was very generally considered to be.

Taking up the mail contract of the Government in good faith, and with that executive promptness and confidence in his recources which were so charac- teristic of the man, Governor Young bent all his energies to organize the "B. Y. Express." He gathered around him the most intrepid men of the mountains, urged the brethren who had stock to join in the enterprise, and suceeded in con- trolling all that was necessary to make such a gigantic company as that which he designed successful. There were many companies organized with outfitting teams, tools, farming utensils, etc., to form settlements over the entire line, though at that date there were only a few mountaineers living between Salt Lake City and the terminal point.

The winter snows of 1856-7 had tarried long on the mountains and the plains, and this rendered the stocking of the road and the building of stations over the long distance of 1, 200 miles a very severe task. But there was every incentive to more than ordinary diligence. The Government had never exhib- ited much favor to any Mormon citizen. The acting postmaster at that time, Judge Elias Smith, was only a deputy of the gentile postmaster, Mr. William

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Bell. Any delay now in commencing the new mail contract might be seized as a pretext for repudiating the new contractor, which really turned out to be the case when the expedition made it convenient for the Government to find such a pretext. With this fully impressed upon their minds, the most daring and hardy of the mountaineers were called by Governor Young to assist, and in an incredi- bly short space of time, and in the midst of very severe weather, stations were built and relays of horses and mules were strung all the way along the traveled route, from the mountains to the Missouri river. There was a fair prospect that the "B. Y. Express Carrying Company" would soon grow into the vast enter- prise as designed, conveying all the merchandise and mails from the East and placing Utah, by means of express messengers, in daily intercourse with the rest of the world, a decade before that desired end was accomplished by the railroad. But this very enterprise, undertaken in the service of the Government, having for its aim also the general good and commercial advancement of this western country, and for the safety of the emigrations, which were fast peopling these young States and Territories, was construed against the Mormons as one of the causes which gave rise to the Utah Expedition. This will be exemplified in document, No. 33, furnished to the House from the Indian Department.

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History of Salt Lake City, Part 20

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