History of Salt Lake City, Part 67

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

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" Congress, in 1850, acting on this theory of the entire separation of all the duties and acts of the United States officers in Utah from those of the Territorial officers thereof, in enacting the organic act for Utah, had provided by sec. 10, as follows :

"' There shall be appointed for the District of Utah a United States District Attorney, who shall continue in office four years unless sooner removed by the President ; and who shall receive the same pay and emoluments as the attorney of the United States for Oregon ; and there shall also be appointed a United States Marshal for the Territory of Utah, who shall execute all processes issuing from said courts, when exercising their jurisdiction as circuit and district courts of the United States. He shall perform the same duties and be subject to the same pay as the Marshal of the present Territory of Oregon.'

" The duties of the United States District Attorney for Utah are thus defined by the act of Congress of Sep. 24th, 1819, sec. 35, vol. 1, U. S. Stat. at Large :

"' There shall be appointed in each district a person learned in the law to act as the attorney of the U. S. in such district, who shall be sworn, etc. ; and whose duty it shall be to prosecute in such district all delinquents for crimes or offences cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except in the Supreme Court.'

" And by the 2d sec. of the same act, the duty of United States marshals are thus defined :

"' It shall be their duty to attend the district and circuit courts, when sitting and to execute, throughout their districts, all lawful processes directed to them, and issued under the authority of the United States.'

" By the same organic law of Utah it was provided : 'That the first six days of every term of the Territorial district court, or so much thereof as shall be ne- cessary, shall be appropriated to the trial of causes under the law of the United States ;' and during those six, or any other days, when the courts were engaged in enforcing the laws of the United States, the U. S. marshal and district attorney performed precisely the same duties as the same officers would do in the Federal courts, in the States of the Union.

" The Territorial Legislature, to enforce Territorial laws, had, on March 3d, 1852, provided by statute for the election of a Territorial marshal and attorney- general, by a joint vote of both branches of the legislative council, by which all the duties of the attorney-general were thus defined. ' To attend to all legal bus- iness on the part of the Territory before the courts, where the Territory is a party,

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and prosecute Indians accused of crimes, in the district in which he keeps his office, under the laws of the Territory of Utah.' And the duties of Territorial marshal were declared to be 'to execute all orders and processes of the Supreme and Dis- trict courts of the Territory, in all cases arising under the laws of the Territory.'

" This latter statute had been affirmed by Congress, for over 22 years, by its tacit approval thereof-and so had become, to all intents, the law of Congress itself.

It will thus be seen that, by the acts of Congress, the duties of U. S. district attorney and marshal for Utah were precisely the same as those in all the States of the Union, while the offices of Territorial attorney-general and marshal, were the same as those of attorney-general and sheriff of the several States.

"Under this state of things the conspirators deemed it necessary at the outset to get rid of the Territorial marshal and attorney-general, and vest their duties in the United States marshal and district attorney. They also wished to nullify the statutes of Utah, providing for the drawing and impaneling of grand and petit jurors, as they could not otherwise use the courts as instrumentalities for the destruction of the Mormons.

" The first move in this direction was made in 1870, in the proceedings of Chas. H. Hempstead, U. S. District Attorney, against Zerrubbabel Snow, Attor- ney-General of Utah, the result of which was that Snow was removed from office, and his duties devolved upon Hempstead, in violation both of the laws of Utah and of the United States.

" At the same time a similar course was taken by Hempstead, against the Territorial marshal, John D. T. McAllister, which ultimated in the removal of that officer and the assumption of his duties by J. M. Orr, U. S. Marshal.

" So long as these absurd decisions remained unreversed by that of the Su- preme Court of the United States, which, in the case of Snow vs. Hempstead, was finally done in October, 1873, the governmental machinery of Utah was held in the hands of the United States judicial officers, who made use of their power to vex and punish the Mormons for pretended offenses.

" This was done by means of packed juries, perjured witnesses, and prosecu- tions conducted by men who were alike ignorant and regardless of law. During the period embracing the years 1870 to 1873, until the United States Supreme Court overruled McKean, and decided that it was 'Snow's duty to prosecute all those persons charged with crimes against the statutes of Utah, and McAllister's duty to draw and impanel all grand and petit jurors,' the United States had ex- pended in this direction over $30,000, and President Young and some sixty to eighty of his people had been illegally indicted for alleged crimes of every name and nature, had suffered many months of false imprisonment at Camp Douglas and in the jails of Salt Lake City and County, and had paid to attorneys and witnesses many thousands of dollars.

" The second step on the part of the conspirators was a process entirely ig. noring and blotting out the statutes of Utah in regard to procuring grand and petit juries for district courts, and enabling Marshal Patrick to select as such jurors any persons whom he might choose, the selection in every case being made, of course, from the most bitter and malignant enemies of the Mormon people.

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" Pendente lite, Hempstead resigned the office of U. S. District Attorney, and Justice Mckean appointed R. N. Baskin to succeed him in an office which no one has any right to fill unless nominated by the President, and confirmed by the Senate of the United States. It was not until November, 1871, that the law- ful successor of Hempstead was appointed by Grant. At this juncture of affairs a collision between the judicial authorities of Utah and the Mormon people seemed inevitable. Great alarm existed all over the United States as well as in Utah. But these gross perversions of law, and Justice Mckean's wild and extra- ordinary charge to the packed grand jury, aroused the public mind ; and the Ad- ministration at Washington was spurred to action.

" Meantime, the illegally-appointed U. S. Attorney, Baskin, had drawn and signed various indictments, which were presented and filed in court by the illegal grand jury, and a very large number of leading Mormons and officers, including the Mayor of Salt Lake City, were arrested and placed in close confinement at Camp Douglas under a military guard commanded by Lieut .- Col. Henry Morrow. This officer had superseded his predecessor, Col. De Trobriand, through the in- fluence of McKean and Doctor Newman, simply because the Colonel had refused to consent to fire upon the Mormon people on the 4th of July, if ordered to do so by the Secretary of the Territory of Utah.

" ' Bill' Hickman, who had been cut off from the Mormon Church for his crimes, was one of the persons so indicted, and being promised immunity if he would turn State's evidence and swear against President Young and his people, confessed to the new district attorney that he had murdered eighteen persons in cold blood. His confinement, however, was merely nominal."

Here we must leave Mr. Bates' review to circumstantially record the proceed - ings of the court, and to give full expansion to the history of those times, as it really constituted the great vein of the history of Salt Lake City, from the ar- rival of James B. McKean, in the summer of 1870, to the date of his removal n April, 1875.1

The Chief Justice and his coadjutors had triumphed in the opening of their plans of prosecutions, setting aside the Territorial attorney general and Territorial marshal ; and all seemed straight before them, to push the prosecution quickly and vigorously through to the designed issue-which was the conviction of every one brought into court of the class of which Brigham Young was chief. But the Territorial Legislature, which was in session in the winter of 1870-71, made no appropriation for the payment of the expenses of the courts. The Legislature in fact was outraged, by this violence done to its original enactments relative to the judiciary, and the forcible abolishment of the officers which it had created for the Territorial business. This had been done without any act of Congress, and ile Territorial legislators held the opinion that the business of the courts, which was about to be done under the Mckean regime, would be illegal, and that it would be so pronounced, and declared null and void, when it came before the Supreme Court of the United States, to which it had been already appealed. This opinion was strongly maintained by the deposed attorney general of the Territory, Judge Ze rubbabel Snow, and he was the proper adviser of the Legislature in this matter. Very properly therefore, the Legislature refused to make appropriations from the Territorial funds for the payment of illegal business.

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HISTORY OF SALT LAKE CITY.

In the March term of 1871, there was a deadlock in the Third U. S. District Court. No further business could be transacted in consequence of the lack of funds to carry on the prosecution ; which brought forth the following most re- markable document, read to the juries by the Chief Justice with great bitterness of spirit.

Here is the record of the court :

" Territory of Utah, in Third District Court, March term, 1871, Salt Lake City. "Chief Justice McKean, at the opening of the court, ordered the grand and petit jurors to be called and then said :

""'Gentlemen of the grand and petit juries, I am not about to deliver a charge to you, but I am about to send you to your homes. It is right that you should know why. The reason is this: The proper officer of this court has no funds with which to pay you the per diem allowance which will be lawfully yours if you serve as jurors, nor has he the funds with which even to pay your board. I do not think it right to detain you here without compensation and at your own ex- pense. You may like to know the cause of this anomalous state of affairs. You shall know. As the law now stands, the per diem allowance of the members, and other expenses, of the Legislative Assembly of this Territory, are paid out of the United States Treasury, while that Legislative Assembly is left to provide for pay- ing the per diem allowance of jurors, and other expenses of the United States courts, while transacting the judicial business of the Territory. I am not com- menting on the wisdom or unwisdom of such a policy, I am simply stating the fact. The United States Treasury promptly pays the Legislative Assembly, but the high priesthood of the so called ' Church of Jesus Christ of Latter-Day Saints, who control the Assembly and all the officers of, or who are elected by the As- sembly, refuse to permit the expenses of the United States courts to be paid, unless they are allowed to control these courts. The high priesthood, acting through their agents, passed an ordinance requiring the ballots at elections to be numbered, and the same numbers to be written on the poll list opposite the names of those who vote the ballots ; thus enabling them to ascertain how every elector votes, and to keep a record of the same. Under this system none but the candi- dates of the high priesthood are chosen to the Assembly, and the presiding offi- cers of the two houses of the Assembly are always high functionaries of the so-called Church of 'Jesus Christ of Latter-Day Saints.' This Assembly has elected one of its favorites a marshal, and another a prosecuting attorney, and sent them into the United States courts, the former to summon the grand and petit jurors and serve process, the latter to take charge of criminal business before the grand and petit juries. But this district court has held, and the supreme court of the Territory has affirmed the rulings, that these so-called officers can- not be recognized by these courts, and that the United States attorney and the United States marshal, appointed by the President and confirmed by the Senate of the United States, are the proper officers of these courts. But the high priest- hood of Utah hold different theories in regard to legal and governmental affairs. A few months since, in the presence of thousands of the people, and surrounded by the highest officials of the so-called 'Church of Jesus Christ of Latter-Day Saints,' one of the high priesthood, and I heard him say : 'There is not in the

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Federal Constitution the dotting of an i, nor the crossing of a t, giving any Federal officer any right to be in this Territory Congress had no right to pass any act to organize this Territory, and the Organic Act is a relic of colonial bar- barism. The Federal officials are usurpers, and have no business here.'

" Gentlemen of the grand and and petit juries, I am a Federal official in Utah; I apologize to nobody for being here; I shall stay so long as I choose, or so long as the Government at Washington shall choose to have me here; and I shall venture the prediction, that the day is not far in the future, when the dis- loyal high priesthood of the so-called Church of Jesus Christ of Latter-Day Saints, shall bow to and obey the laws that are elsewhere respected, or else those laws will grind them to powder.

" Gentlemen, one of the consequences of the decisions above referred to of the United States courts in Utah, is that already several men in high positions in the so-called Church of Jesus Christ of Latter-day Saints, have been indicted for high crimes, some of them for murder ; another consequence is, that enterprising men in large numbers, and capitalists of large wealth, have come into the Terri- tory to embark in business pursuits, believing that even-handed justice would now be done them. It is an important fact, that while for about twenty years there has been a considerable population in this Territory, not only has not the great mineral wealth of Utah been developed, but the fact of its existence has, until re- cently, been concealed from the world outside of Utah. Now this mineral wealth is just beginning to be developed. And here, as everywhere among great business enterprises, there is much resort to the courts for the adjustment of conflicting interests. There are now on the docket of this court, awaiting trial, cases involv- ing millions of dollars.

" And now, gentlemen, the high priesthood of the so-called Church of Jesus Christ of Latter-day Saints, demand the right to select and summon the grand and petit jurors, who are to try all criminal and civil Territorial cases in this court ; and demand that officers selected by them shall take charge of all such business in this court. And, gentlemen, because this court refuses to surrender itself into their hands, they refuse to pay your just allowance or to defray any of the expenses of this court. It is not just that you should be kept here at your own charges, and I will not keep you. But, gentlemen, do not misunderstand me. There is to be no surrender to unwarrantable exactions. The Government of the United States is not accustomed to being thwarted ; and while those who represent it in Utah may be hindered, they will not be defeated. Let it not be doubted that after a pause in the path of duty, they will again resume their line of march with renewed energy. Gentlemen of the grand and petit juries, I thank you for your attendance, but I will not detain you. You are adjourned sine die."

The journals of the country gave considerable space to the discussion of the state of affairs in McKean's court, and even the great journals of England mani- fested an interest in the matter ; but though there was manifested a general desire and aim in the country to deal with polygamic Utah, the soundest journals early confessed that Judge McKean was pursuing illegal methods to reach the desired end, and that the deadlock in his court was the logical sequence of his own course. The Carson Register, commenting on the situation, said :

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" The Sacramento Record is very indignant at the Mormons because Judge McKean of Utah adjourned the district court for the reason that no compensa- tion had been provided for jurors. The Record evidently does not understand the matter. McKean is a violent and unscrupulous judge, who appears to have more of a mission to stir up bad blood in Utah and raise a disturbance so as to justify the interference of the Federal Government, than to administer the law according to his oath and ability. In a case before him he ruled that the district court was not a Territorial court, but an United States court-that there is no such court as a Territorial district court. The decision was absurd, being in the teeth of all the statutes and decisions since the foundation of the Government. It was made in order to break down the Mormons, law or no law. If his court is a U. S. Court, of course, the United States is bound to pay its expenses-the Territorial treasurer has no authority to disburse money out of the Territorial treasury to pay jurors. Judge Mckean was simply caught in one of his own traps. Like every man who deviates from trodden paths of precedent and law, he is liable to get scratched with legal briars, and to break his neck over unknown principles."

The New York Herald, of the fourth of July, under the head " Utah Troubles,' contained a resume of Utah affairs, preparing its readers for expected difficulties in Salt Lake City at the celebration, which was the subject of a former chapter. Starting with the proclamation of Governor Black, it touched upon the history of the militia of this Territory, bringing it down briefly to the proclamations issued. by Governor Shaffer, and thus summed up the militia branch of its review :

" With the knowledge of all these facts, the proclamation of Acting-Gov- ernor Black seems like seeking a quarrel, and is doubtless the result of evil coun- sellors. Had the order of General Wells been as before-for musters, drills, etc. -the reproduction of Governor Shaffer's proclamation would have probably been in order, but to apply it in forbidding citizen soldiers to take part in a military capacity in a procession of mechanics, artisans, laborers and school children, in honor of the nation's birthday, the same as will be done all over the Union, looks doubtful on the side of wisdom."

Touching the judicial branch of the "Utah troubles " the New York Herald said :

" Judge Mckean has done in law what Governor Shaffer did in politics; but McKean has lived on and been humbled and defeated. The Federal judges had the same experience as the Federal Governors, and nearly all of them have done their grumbling but to no effect. McKean was determined to tackle it, and re- fused the recognition of the Territorial marshal and attorney, as Shaffer did the Territorial Nauvoo Legion and its lieutenant-general. But the judge comes to grief for the moment. He held his court with the United States officers ; but the United States treasury would not honor the marshal's drafts for the expenses of the court, virtually acknowledging that the Mormon interpretation of the question was correct. Here is the chief justice of the Territory of Utah, a gentleman of earning, ability and moral character, completely baffled and smarting terribly

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under his defeat. He had essayed to do something and had failed. Not for the want of physical support, for the United States army and all the volunteers that could be called for would have rushed to sustain him, but he failed because he could not sustain himself as the law stood."

CHAPTER LIX.

THE U. S. MARSHAL PREPARING TO RECEIVE PRISONERS. ACTION AGAINST THE WARDEN OF THE PENITENTIARY AND THE TERRITORIAL MARSHAL. HEARING OF THE CASE BEFORE JUDGE HAWLEY. FITCH AND BASKIN. THE U. S. ATTORNEY PREFERS THE GUNS OF CAMP DOUGLAS TO THE TEDIOUS PROCESS OF LAW. GOVERNOR WOODS COMMITS HIMSELF ALSO ; WHEREAT THE COURT IN CONSTERNATION CALLS THEM ALL TO ORDER.

The preliminary action of the September term of court, (1870) was quite ominous, and indicative of preparations being made by the United States mar- shal to receive prisoners from the hands of the chief justice ; and it was known, too, that those expected prisoners were Brigham Young, Mayor Wells and others of the class whom the judge, in his address to the juries, had spoken of as the " high priesthood of the so-called Church of Jesus Christ of Latter-Day Saints." Indeed, he had, through this address, told the public, and the news had gone over all America, and across the Atlantic to Europe, that "already several men in high positions in the so-called Church of Jesus Christ of Latter-Day Saints, have been indicted for high crimes, some of them for murder." And, whether he had designed such a purpose or not, his words, all the same, created the im pression everywhere that some of the Mormon leaders were about to be sent to the penitentiary, and perhaps some of them hanged. So when, just previous to the opening of the September term of court, U. S. Marshal Patrick moved to eject Warden Rockwood, and to take possession of the penitentiary and the pris- oners, the Salt Lake public knew what the move signified, and became intensely excited, thus knowing that Brigham Young and his compeers were the next pris- oners the U. S. marshal was preparing to receive. The Salt Lake Tribune stated the case to the public of the U. S. Marshal vs. Warden Rockwood and Territorial Marshal J. D. T. McAllister. The Salt Lake Tribune said for the Federal author- ities, with much exaggeration :

"A prisoner by the name of Kilfoyle was serving a sentence of fifteen years in the penitentiary for manslaughter. This convict belonged to the penitentiary and to the custody of Marshal Patrick. The latter, by instructions from Gover- nor Woods, demanded him, but in vain. He was in the city prison, under J. D. T. McAllister's care. The latter bluffed and sold Marshal Patrick after he had agreed to give the prisoner up, by displaying two hundred Mormon deputy

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Territorial marshals, and then refused to make the surrender. Governor Woods pursued the retreating official. Then stepped in Associate Justice C. M. Hawley, on Marshal Patrick's complaint. The result yesterday was the arrest of McAllis- ter and Rockwood, a brief hearing, an adjournment, and the bailing out of the Territorial chieftains to appear again to-morrow morning to answer the serious charge of resisting United States officers and concealing prisoners. The question of the United States laws over the Territorial enactments is likely now to be set- tled on one point. Of course every other one must be settled on its own merits. Every inch gained by the law must be fought for. Some of these days the church will get fatigued, we guess."

The Deseret News of September 2nd, gave the Territorial side and said :

" This morning at 10 o'clock, U. S. Marshal Patrick entered the court room of the City Hall and made, in the presence of witnesses, a formal demand of Warden A. P. Rockwood for the latter to deliver up to his (the marshal's) custody the prisoner Kilfoyle. Mr. Rockwood asked whether he had any written authority, from any court of competent jurisdiction, authorizing him to make such a demand. The marshal said he had not; whereupon Mr. Rockwood de- livered to him the following :

"' WARDEN'S OFFICE, SALT LAKE CITY, "' August 31st, 1871, 6 P. M. "' M. T. Patrick, U. S. Marshal for the Territory of Utah :

" ' On my return to my office this evening, Mr. Hyde the officer in charge of one of the convicts in my custody, informed me that you had called upon him, and demanded the surrender of said convict, also that he demanded your authority for so doing, and that you had no process from any court, on the sub- ject, but it was the instruction or order of Governor Woods, for you to take pos- session of the prisoner ; whereupon Mr. Hyde informed you that he was not authorized to deliver him without an order of the court.

""" This is to inform you that I have an order of court, authorizing me to retain him until discharged by due process of law and it is my sworn duty so to do. Under these circumstances I have to inform you that I shall not deliver him to you, unless you present an order from some court of competent jurisdiction in the premises, which will be a warrant to me to deliver him to you.

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History of Salt Lake City, Part 67

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