History of Salt Lake City, Part 66

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

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Several gentlemen, some of whom were present, were vociferously called upon to take the stand, but none responded-except Judge Haydon, who did so to offer as an apology for not speaking that it was neither his fight nor his funeral-

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as each one was afraid of putting his foot in it. After repeated calls, Mr. Eli B. Kelsey appeared upon the platform, and then the fun which was fast when Tul- lidge collapsed became furious. He opened by remarking (alluding to the speeches of General Maxwell and Col. Toohy) that he was insulted; that in identifying himself with the liberal party he did not suppose that he was enlisted in a crusade against the Mormon people ; and that he was disgusted with the vul- gar abuse heaped upon them that night. He avowed himself a polygamist ; said he would sacrifice his life rather than repudiate his wives and children , and hurled back to Col. Toohy the epithet ' hogs' which the latter gentleman had applied to polygamists. The speech throughout was accompanied by volleys of cheers and hisses and calls for Toohy, and at one time these demonstrations were so obstrep- erous as to call for the interference of Gov. Woods, who, in a few sensible re- marks, succeeded in restoring order. Before the conclusion of Kelsey's speech, the dismay which the outbreak of Tullidge had inaugurated on the countenances of the gentlemen on the stand, deepened to funereal sadness, and an earnest con- sultation among them resulted in a resolution to adjourn to avoid the danger of further apostacy ; and so they adjourned, although a majority of the audience favored the prolongation of the performance. The Liberal party is dead, disem- bowelled by its own hand."

Immediately after this fated ratification meeting of the Liberal party, Mr. Beckwith repudiated his nomination on their ticket, while the best men of the party were disgusted with the rank anti-Mormon malice manifested by those who were aspiring to represent the citizens of Utah in the Legislature of the Territory and in the Congress of the United States. Mr. Walker and his personal friends were particularly chagrined and quite as much outraged as the Mormon people themselves, among whom they had been raised and between whom there still re- mained much sincere good will. Eli. B. Kelsey in a letter to the Tribune said :

" The spirit of the proceedings in the mass meeting of the Liberal party, held on Saturday, the 22d instant, convinced me that a portion of those who assume to lead are bent upon a war upon the people of this Territory on social and religious grounds. They did not disguise the fact that they utterly ignored the necessity of affiliating with the reform party in Utah in their efforts to bring about a peaceful solution of the questions at issue between the Mormon priesthood and the Government of the United States. The reform party have persistently striven to convince the people that they are their friends and not their enemies. Every word of the blatant demagogue who slandered the people of Utah in that meeting convinced me that the small but active element that seeks control of the Liberal party is filled with bitterness and would fain inaugurate a social and re- ligious war upon the people of this Territory. J. Robinson Walker and Samuel Kahn, who are the nominees of the convention of the Liberal party for Salt Lake County are men who are almost universally known throughout the Territory. They are men whose past record is above reproach or suspicion, and I am sure that they will never do other than work for the best interests of the whole people. As for myself I am as free from the control and dictation of parties political as I am from that of parties ecclesiastical. I have frequently borne witness to the integrity of the Mormon people ; their fidelity to their religion ; their morality, industry and

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sobriety ; and no party which harbors designs against the peace and welfare of the people of Utah shall ever have my co-operation.

" I have neither time nor inclination, at present, to go into a full explana- tion of my ideas on marriage. I will, however, say that although willing to pledge myself not to extend polygamy, in violation of the expressed will of the nation, I will never consent to obey an ex post facto law. To let bygones be bygones is the policy which, I am sure, the wisdom of the nation will approve.

" If there are individuals who aspire to the leadership of the Liberal party in Utah, I hope they will have the wisdom to avoid the framing of an iron bedstead upon which to measure the people,-stretching these who are too short, and lop- ping off the extremities of those who are too long. I trust that they will remem- ber that the Mormons are a hundred thousand strong in Utah ; that they are a fruitful people, and that it is not at all improbable that the number of young men and women who will attain to the age of twenty-one years and enjoy the rights of franchise every year hereafter, will at least equal the number of outsiders that the mining interests will draw hither. Any man aspiring to political leadership who is so dull as not to understand the necessity of living so as to be worthy of the confidence of, and affiliating with, this growing element of strength in Utah, as they shall free themselves from the dogmatic faith of their fathers, is a man of too thick a skull for a successful politician. My advice to the nominees of the con- vention is not to withdraw, by any means, but to issue a card clearly defining their position, and run for the offices for which they have been nominated, party or no party, I will pledge them my vote if they will do so. "

Mr. Walker and his colleagues did not issue the card suggested, but in their stead the Salt Lake Tribune gave the better mind of the party and a severe rebuke to the Anti-Mormon ring. It said :

" The Liberal Party of Utah has a noble mission-one worthy the best efforts of the best men of the Territory. The questions at issue come home to the people, and should therefore be considered calmly, carefully and dispassion- ately. Narrowness, uncharitableness, bitterness and prejudice should be banished from the party councils, and denied a hearing in the public meetings. Fairness, firmness and moderation should characterize every act of every man who assumes to speak as a representative of the party. We want no cliques among the Liberals in this campaign, and no leaders-self-constituted or otherwise-who appeal to the passions and prejudices of the people. The party has quite enough to attend to in opposing the rule of the Church over political affairs, without spending time and fomenting dissensions in its own ranks by useless opposition to particular in- stitutions of the Church. We can oppose the union of church and state without stopping to quarrel about church doctrines. Polygamy is a social if not a relig- ious institution of the Territory, and it is established in such a manner that it can not be suddenly extirpated.

" Neither is there any necessity for such violent measures. It is an institu- tion which, if let alone, will die of itself, for the simple reason that it is not in harmony with its present surroundings. It needs no opposition. On the contrary persecution will but serve to prolong its life. Having the good of the Liberal party at heart, and ardently desiring its success, we here protest against the at-

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tempts some weak, misguided men are making to force this political organization into a raid on the domestic institutions of the Territory, an object entirely foreign to its original design and present desire of nine-tenths of those who organized and now compose the Liberal party of Utah. The party has legitimately nothing to do with the social questions, and with religious questions nothing further than to opposse the union of priestly with political rule.

" It is not long since one of the mischief-makers proposed to rule out of the Liberal party all who are connected with polygamy, however honestly and inno- cently they may have entered into such relations. We felt then like rebuking this self-constituted censor-this would-be dictator of a party whose liberality of pur- pose, his contracted mind is incapable of comprehending-but we refrained out of regard to what we believed to be party policy. We ignored the existence of such a disturbing element, in hopes that we should hear no more of it, but every day has added to the utterances of this disorganizer, and at last his captious course has resulted in the withdrawal of a portion of our party ticket. If he had been an open and avowed enemy he could not have so injured us. Private appeals and friendly requests having been of no avail, we feel compelled at last to give public utterance to this earnest protest against the course that has been so persistently pursued. "

But these efforts were in vain. The coalition, formed by ex-Mormon Elders and radical Gentiles, had been an utter failure. The party had professed a polit- ical mission for the good of Utah, and not its disturbance and ruin, and had even offered itself to the Mormon community as a natural reconciler between them and the nation at large ; and it was fondly hoped by, at least some of those seceding Elders, that this party would use its influence and efforts with the government and Congress, to temper their policy and measures, with much consideration and humanity, in the expected legislation to be applied to the Mormon people. The sacredness and integrity of existing family relations was the first plank of their platform ; and even Maxwell, in his characteristic way, had admitted as much as the original compact of the coalition, at the same time that he and his class were outraging every polygamous family relation in Utah, and making a raid, not only in the courts, but now in their political campaigns upon the religious and domestic institutions of the whole Mormon community. From the moment that this fact became demonstrated, as it was by the late ratification meeting, the compact be- tween these seceding Elders and the Gentiles ceased ; and the coalition party died -" disemboweled," as the Salt Lake Herald said, " by its own hand." It never could be resurrected Thenceforth the Liberal party was clearly an anti-Mormon party. The example of that year gave the lesson for all time to come, in our local politics, that no body of Elders coming out from the Mormon church, can unite in action with an anti-Mormon political party. Mormon Elders have shown that they have hearts, brains, stiff-necks, and that they are not easily to be captured ; and whatever may be their change of mind towards scepticism, or their transition to individualism, they are not apt to allow the people whom they converted, and to whom they have stood as fathers, to become the prey of anti-Mormon wolves. Such was the historical example of our local politics of the year 1871 ; and it will explain why no more acquisitions of voters from Mormon seceders have joined the Liberal party.

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In vain the party tried to recover itself on the election day. More ill-omened the day and blacker in its prognostications than even the ratification night ; for there were not only many who withheld their votes, who had belonged to the Lib- eral coalition, but some who openly renounced the party at the polls, and voted with their old Mormon brethren the straight People's ticket.

At the election of August, 1871, the coalition party was buried. Maxwell had said : " We may not succeed at this election, but we shall poll a vote that will astonish them." The following shows the result of the election for councilors to the Legislative Assembly for Salt Lake, Tooele and Summit Counties : Wil- ford Woodruff, 4,720; George Q. Cannon, 4,719; Joseph A. Young, 4,714; William Jennings, 4,714; S. Kahn, 620; J. Rob. Walker, 616; D. E. Sommers, 614; W. Spicer, 608. The campaign was crowned with the predicted aston - ishment.

CHAPTER LVIII.

HISTORY OF THE JUDICIAL ADMINISTRATION OF JAMES B. MCKEAN AS RE- VIEWED BY U. S. DISTRICT ATTORNEY BATES. THE CHIEF JUSTICE HA- RANGUES THE GRAND AND PETIT JURIES ON THE "HIGHI PRIESTHOOD OF THE SO-CALLED CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,'' AND SENDS THEM HOME FOR LACK OF FUNDS. A REMARKABLE DOCU- MENT. THE PRESS OF THE COUNTRY ON THE ANOMALOUS CONDITION OF MCKEAN'S COURT.

The history of the judicial administration of James B. McKean, Chief Justice of Utah, during its most critical period, would form one of the most extraordin - ary chapters of the whole history of the British and American jurisprudence of the last three centuries. It was so striking and uncommon that some of the American journalists spoke of it as a suggestive reminder of the administration of Chief Justice Jefferies of England, during the reign of James the VI. Whether de- served or not, it fell to the lot of James B. Mckean to be actually dubbed the " modern Jefferies, " much both to his indignation and grief ; for whatever might be the opinion of those who condemned him, he believed himself to be an upright and merciful judge in whose administration there was no particle of malice. Not to justify or condemn the man, but to record and review the ad- ministration of his court, from the year 1870 to 1875, is the purpose of these judi- cial expositions.

George Cæsar Bates, U. S. District Attorney for Utah, during a portion of McKean's time, and who in fact, by his strong dissent provoked his own removal from office, has made a very able review of the Mckean period and its subject.

He wrote : " The events to which allusion is made occurred during the years

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I870-1-2-3-4, and in the spring of 1875, finally culminating in the removal of Chief Justice McKean from an office which he had disgraced and abused in a manner to which the world can furnish no parallel. Appointed through the Jesuitical influence of the Methodist Church, and sustained by the combined big- otry of the land, his downfall only came through the sheer recklessness of his despotic and brutal career.

"A careful search of the records will reveal how, through such instrumentalities as those of packed grand and petit juries, a corrupt judge, a pretended United States district attorney, appointed by that judge, and the State's evidence of an atrocicus murderer, who purchased his own immunity from justice by his perjury, it was intended to consummate the judicial murder of Brigham Young, Mayor Wells of Salt Lake City, Hosea Stout, Joseph A. Young and other leading Mor- mons, on charges the most absurd and untrue.

" Chief Justice Mckean and his co-conspirators had their plans apparently well laid, but 'man proposes, God disposes.' Chief Justice Chase and his asso- ciates, inspired by the God of justice, stepped in at the last moment, overwhelmed the enemies of the Mormons, and scattered to the winds their unrighteous mach- inations. Before we present the proofs, however, from the records of this most remarkable providential interposition to arrest the hands of those would-be judi- cial murderers, we will give an analysis of the laws bearing upon the case, as expounded by the Supreme Court of the United States.

" In the case of Dred Scott, Chief Justice Taney said :

"""' But the power of Congress over the person or property of a citizen ( in a Territory), can never be a mere discretionary power under our constitution and form of government. The powers of the Government and the rights and privil - eges of the citizen are regulated and plainly defined by the constitution itself. And when the Territory becomes a part of the United States, the Federal Gov- ernment enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen clearly defined, and limited by the constitution, from which it derives its own existence, and by vir- tue of which alone it continues to exist a .. d act as a government and sovereignty. It has no power of any kind beyond it ; and it cannot, when it enters a Territory of the United States, put off its character and assume discretionary or despotic powers which the constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the constitution. The Territory being a part of the United States, the government and the citizen both enter it under the author- ity of the constitution, with their respective rights defined and marked out ; and the Federal Government can exercise no power over his person or property, be- yond what that instrument confers, nor lawfully deny any right which it has reserved. '

" A reference to a few of the provisions of the constitution will illustrate this proposition.

" For example, no one, we presume, will contend that Congress can make any law for a Territory, respecting the establishment of religion or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the

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people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

" ' These powers and others in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the general Government ; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground, by the fifth amendment of the constitution, which provides that no person shall be deprived of life, liberty and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of ' due process of law. '

" 'So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace ; nor in time of war except in a manner prescribed by law. Nor could they by law forfeit the property of a citizen, in a Territory, who was convicted of treason, for a longer period than the life of the person convicted ; nor take pri- vate property for public use without just compensation.

"' The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and Congress is forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the constitution gives power to legislate, including those portions of it remaining under Territorial government, as well as that covered by State government. It places the citizens of a Territory, so far as these rights are concerned, on the same footing with cit- izens of the States, and guards them as firmly and plainly against any inroads which the general Government might attempt, under the plea of implied or inci- dental powers. And if Congress itself cannot do this-if it is beyond the powers conferred on the Federal Government-it will be admitted, we presume, that it could not authorize a Territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the constitution.'

" Now let us see what Chief Justice Chase said in the Englebrecht decision .

" 'The theory upon which the various governments for portions of the Terri- tory of the United States have been organized has ever been that of leaving to the inhabitants all the powers of self government consistent with the supremacy and supervision of rational authority, and with certain fundamental principles es- tablished by Congress. As early as 1784, an ordinance was adopted by the Con- gress of the Confederation, providing for the division of all the territory ceded, or to be ceded, into States, with boundaries ascertained by the ordinance. These States were severally authorized to adopt for their temporary government the constitution and laws of any one of the States, and provision was made for their ultimate admission, by delegates, into the Congress of the United States. We

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thus find that the first plan for the establishment of governments in the Territories authorized the adoption of State governments from the start, and committed all matters of internal legislation to the discretion of the inhabitants, unrestricted other- wise than by the State constitution originally adopted by them.'

"This ordinance, applying to all Territories ceded or to be ceded, was super- seded three years later by the ordinance of 1787, restricted in its application to the territory northwest of the river Ohio-the only territory which had been ac- tally ceded to the United States.

" It provided for the appointment of the governor and three judges of the court, who were authorized to adopt, for the temporary government of the dis- trict, such laws of the original States as might be adapted to its circumstances. But as soon as the number of adult male inhabitants should amount to five thous- and, they were authorized to elect representatives, who were required to nominate ten persons from whom Congress should elect five to constitute a legislative coun- cil ; and the House and Council thus selected and appointed were thenceforth to constitute the Legislature of the Territory, which was authorized to elect a dele- gate to Congress, with the right of debating, but not of voting. This Legisla- ture, subject to the negative of the Governor, and certain fundamental principles and provisions embodied in articles of compact, was clothed with the full power of legislation for the Territory.

" In all the Territories full power was given to the Legislature over all ordi- nary subjects of legislation. The terms in which it was granted were various, but the import was the same in all.

" The doctrine, in the early days of this Government, was that the people who scattered themselves over the Territories, who encountered the Indians, and who built up towns, cities and villages in the Territories of the United States, and erected railroads and telegraphs, should be a State ad interim.

" This same doctrine was adopted by Congress in 1850 ; when General Cass in the great discussion on the compromise bill, -- when for the first time in the history of our Government, Calhoun and his pro-slavery friends, for the purpose of extending slavery into Territories then free, assumed and declared that Congress could interfere with the domestic relations in Territories-replied : ' During the pendency of the Territorial government they should be allowed to manage their own concerns in their own way. Does not slavery come within this category ? Is it not a domestic concern ? Is not that the doctrine of the South-of common sense indeed ? No Territorial government was ever established which had not power to regulate the domestic relations of husband and wife, of parent and child, of guardian and ward; and if the inhabitants are competent to manage these great interests, and indeed the interests belonging to all the departments of so- ciety, including the issues of life and death, are they not competent to manage the relation of master and servant, involving the condition of slavery ?'

" A prominent journal, in discussing the point, said : ' To us it appears that, from the earliest times, the policy has been to leave all matters of internal legisla- tion to the Legislative Assembly, as soon as there was one in a Territory of the United States. 'The only deviation to be found from this rule was when the agi- tation about slavery prompted attempts at exceptional provisions for or against it.

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It was at the very time that Utah was erected into a Territory that adverse pre- tensions on the subject of slavery in the Territories received a quietus, in the measures of 1850, advocated by Clay, Webster, Douglass, Cass and other eminent statesmen. 'They framed and advocated the several acts, among them the act or- ganizing Utah, by which, without proscribing slavery or protecting slavery, the matter was left to the people of the Territory, like all other local subjects, and with the best results. Slavery never was introduced into either New Mexico or Utah, both organized on the same principle of leaving all domestic institutions to the local law. General Cass, in the debate on the subject, gave its true history, as above quoted.

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History of Salt Lake City, Part 66

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