USA > Utah > Salt Lake County > Salt Lake > History of Salt Lake City > Part 68
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""'Such further action as you choose to take, will be on your own respon- bility.
"4-Respectfully yours, ""'A. P. ROCKWOOD, Warden.'
"After receiving the above paper the marshal said he would have him (Mr. Rockwood) arrested for retaining the prisoner. Mr. R. said, ' I have nothing more to say, you have received my answer to your demand.' The marshal then enquired of Mr. R. who had the prisoner in custody, and was told that he be- lieved City Marshal J. D. T. McAllister, and that officer Wm. Hyde was the jailor.
" Marshal Patrick then made a demand upon City Marshal McAllister, for the prisoner in question, in answer to which, Mr. McAllister said he could only
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deliver him on an order from Warden Rockwood, to whom he was responsible for him. Marshal Patrick then said, in an excited manner, 'Then I will try to take him. I will endeavor to muster enough men to do it,' and, looking around the room, ' I see you have a good many men here.' Our reporter looked round too, but failed to see the many men, there being about sixteen in the room, most of whom were merely spectators, who had stepped in to see what was going on. Mr. McAllister informed Marshal Patrick that when he, Mr. Patrick, delivered over to the city authorities, for safe keeping, the prisoner Mckay, he (Mr. McAl- lister) would not have been justified in delivering him up to any party without his, Marshal Patrick's order, and his position was the same as that sustained by him to Warden Rockwood. Mr. Patrick then said he would have Mr. McAllister arrested and taken to Camp Douglas. Mr Patrick then left the hall."
Judge Morgan opened for the prosecution.
But the " true inwardness" of this action was brought out during the speech of Mr. Fitch, which Acting U. S. Attorney Baskin interrupted, to say that his way would have been to put the guns of Camp Douglas upon the city, blow down the City Hall and jail, and force possession of the prisoner with bayonets. Coun- selor Fitch was arguing :
" If the marshal of the United States, deeming himself, under the law, en- titled to the custody of this prisoner had applied to your Honor for a writ of habeas corpus, to test the legal questions involved, and your Honor had upon such proceeding decided that the marshal was entitled to his custody, then such de- cision should have been ' an order of court ; ' within the meaning of the act of 1790 ; and, on a refusal to comply with that order, the Territorial officer would have been liable under the laws of the United States that have been cited here. But it seems that the marshal determined to proceed without a process of court. Why he came to this conclusion I do not know. If he was right in his construc- tion of the act of Congress, an order of the court could have been obtained at no greater cost or trouble than this prosecution ; and it seems that he will need the order of court after all, for the counsel who opened the case for the prosecu- tion stated to your Honor that in the event of the commitment of this defendant, he should also ask for an order of the court that the prisoner be turned over to the custody of the United States marshal. He asks now for that which he should have solicited before, and which, had he obtained it, would have superseded the necessity of this proceeding. If there had been a successful application for the custody of Kilfoyle by habeas corpus, or if there had been any kind of an order of this court issued and directed to the warden of the Penitentiary, commanding him to surrender Kilfoyle to the U. S. marshal, he would at once have surren- dered the prisoner, and there would have been no cause for argument in his de- fense upon this criminal charge. All the defendant asked, as appears from the testimony, was an order of court. In his written protest, he says, ' I will surrender this convict on the order of some court of competent jurisdiction.' He deems himself invented by the Legislature of the Territory with certain duties and re- sponsibilities ; he has given bonds for the faithful performance of those duties and the discharge of those responsibilities. It is but little to ask, when he is called upon to divest himself of these responsibilities, and to cease to perform
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those duties, that he should do it on some demand more formal and some decision more binding than the construction of an act of Congress made by the United States marshal-the United States marshal who is not responsible to the people of the Territory or the Legislature of this Territory, and whose construction would not avail the warden as an excuse or defense for official malfeasance if per- chance he should be charged with such, for thus relinquishing his trust. Habeas corpus would, it seems to me, have been the better way to test this question ; but being less calculated to make turbulence and create ill-feeling, than the method of procedure which has been pursued it may, by some, be thought a matter of congratulation that it was not invoked. However, we have perhaps cause to con- gratulate ourselves that the guns of the Fort have not been turned on the city, and the City Hall surrounded with cavalry, infantry and artillery, and the warden compelled at the point of the bayonet to surrender his prisoner."
MR. BASKIN-" That would have been my way to do it."
MR. FITCH-" I presume that Mr. Baskin would have knocked the City Hall and city jail down."
MR. BASKIN-" I would that ! "
MR. FITCH-" The acting law officer of the United States informs us that he would have ' let loose the dogs of war' had his advice been followed and his wishes consulted. And why were they not? Where was all the power which with all the pomp and parade of war once interfered to prevent by arms a peace- ful parade of American citizens on the Fourth of July. Was it asleep? ashamed ? or afraid ? "
GOVERNOR WOODS (who was seated on the right hand of Judge Hawley)- " Neither, my Lord !"
MR. FITCH-" I am assured by the Executive of the Territory of Utah, who honors us with his audience and encourages the prosecution with approving smiles that my surmises are incorrect. The Executive of the Territory, who perhaps agrees with the opinion once expressed by the present President of the United States, that ' the justices of the supreme court are members of the Governor's staff, and who deigns to give to your Honor, as his staff officer, the benefit of his protecting presence, while at the same time he stands ready to answer ques- tions of defendant's counsel, whether he be the party interrogated or no-
THE COURT-This discussion is becoming exciting and I shall not permit further remarks outside of the case."
MR. FITCH -" I beg your Honor's pardon,-but I have not traveled out of the proper line of argument, except to comment upon interruptions, made irreg- ularly by Mr. Baskin and improperly by Governor Woods. Since, then, we are to be tried before being punished, I will now proceed to the consideration of the important questions involved."
The judge was, for the moment in a state of consternation; for evidently, Mr. Fitch, knowing well enough what U. S. Attorney Baskin's mode of action would have been, and that Governor Woods was most eagerly ready to back the courts, even to the letting loose the " dogs of war," had surprised them into the actual confession in court of their minds and intents.
The Federal officers thus brought to order and caution, Mr. Fitch was al-
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lowed to conclude his most masterly defense, and was followed by Mr. Baskin in what was said by his friends to have been the ablest effort of the day. But the ability of the arguments on either side is of no consequence in the history ; - the case and the issue being the salient points.
Judge Hawley, in closing his decision in the case of the United States vs. the Territorial marshal and warden of the penitentiary, said :
" An order has been asked on the part of the prosecution upon the defen- dants to deliver the said convict Kilfoyle to the United States marshal.
"Believing that while sitting as a committing magistrate I have not the authority of a court, except for the purpose of such hearing, and determining the probable guilt of the defendants, I must deny this motion ; and therefore the marshal must be left to exercise his powers in that regard in conformity to his rights under the laws, of both those passed by Congress and the Territorial Legislature.
" Holding these views of the law it is my duty to require the defendants to answer to such charges as the grand jury of the district court of the Third Judi- cial District at the September term for the present year may prefer, and abide the order of said court."
When the U. S. Marshal made a demand for the convict at the door of the city prison, on the morning after Judge Hawley's decision, he was told that the former warden, A. P. Rockwood, had him on his premises. Thither the marshal repaired and found and took possession of the prisoner.
CHAPTER LX.
OPENING OF MCKEAN'S COURT IN SEPTEMBER, 1871. SELECTING THE GRAND JURY. ARRESTS OF BRIGHAM YOUNG AND DANIEL H. WELLS, GENERAL EXPECTATION IN THE STATES THAT THE MORMONS WOULD RISE IN ARMS TO RESCUE THEIR LEADERS. BRIGHAM YOUNG IN COURT A TOUCHING SPECTACLE. THE CHIEF JUSTICE PROCLAIMS FROM THE BENCH THAT "A SYSTEM "-" POLYGAMIC THEOCRACY"-IS ON TRIAL IN THE PERSON OF BRIGHAM YOUNG.
The summoning and passing of the grand jurors formed quite an illustrative preliminary of the polygamic and criminal trials, which the acting U. S. prosc- ( uting attorney, Baskin, was constructing for the September and March terms of 1871 and 1872. Marshal Patrick summoned just enough from the Mormon side of representative men, to suit the purpose of the prosecution, in giving the opportu- nity to question and challenge them. Apostle George Q. Cannon was one of those chosen for this purpose.
The Salt Lake Tribune, frankly confessing the object for which the Mormon citizens had been summoned by the U. S. marshal, says : " Chief Justice McKean
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opened the Fall term of the Third District Court on Monday, (Sept. 18, 1871). A grand jury had been summoned and was present, together with the regular petit ju- rors. The only notable feature in the partial organization of the grand jury was the setting aside by the court of three prominent Mormons, leaders in the Church of Latter-day Saints, and veritable agents of the Almighty as represented by Mr. Young, president and treasurer of the Mormon Church, president of the Deseret Bank, president of the Utah Central Railroad, and general participant in all the good things seizable in Zion. There were three grand jurors who were Saints."
It was amid these circumstances-with the court of Chief Justice McKean thus prepared for business, with grand and petit juries satisfactory to the U. S. prosecuting attorney, that President Brigham Young and Mayor Daniel H. Wells were arrested. The words of the prosecutor, Baskin, that his mode of procedure in enforcing the law would be with the guns of Camp Douglas and the bayonets of U. S. soldiers, were ringing fresh on the ears of the citizens, and the very un- mistakable assurance of the Governor of the Territory, made in court, that he was neither " asleep, ashamed, or afraid," to execute such a mode was enough to make our city tremble with the frightful sensation that the volcano beneath might at any moment burst. These ominous open utterances of the Federal actors were mide but a few days previous to the arrest of the head of the Mormon Church and the Mayor of Salt Lake City ; and both of these leaders, too, in this case, were arrested not for any personal crime, but for the grand offense of their church -polygamy. So far every Mormon citizen was concerned in the offense or guilty of the "crime ;" and so far Judge McKean was right when he said " polygamic theocracy," or the Mormon Church, was on trial in the person of Brigham Young. It was not so, of course, in the sense of the law, but in the interpretation of the " real case " by a judge who embodied in himself a mission to bring "poly- gamic theocracy " to trial and judgment, just as he said polygamic theocracy was embodied in Brigham Young. In this extraordinary and extrajudicial sense there was no essential difference in the understanding of the case between the Chief Justice and the Mormon people. The actual intention of the court, the U. S. prosecutor, and the Governor was to arrest "polygamic theocracy ;" and when Marshal Patrick, on the 3rd of October, put his hand on Brigham Young, he did indeed both in design and fact arrest the Mormon Church, in the Mckean sense.
Was it a wonder, then, with such a sense of the case on both sides, that a fearful suspense pervaded the city at the moment of the arrest of Brigham Young? It was well known that he had often declared hat he never would give himself up to be murdered as his predecessor, the Prophet Joseph, and his brother Hyrum had been, while in the hands of the law and under the sacred pledge of the State for their safety ; and ere this could have been repeated ten thousand Mormon elders would have gone into the jaws of death with Brigham Young. In a few hours the suspended Nauvoo Legion would have been in arms ; and then if the guns of Camp Douglas had opened fire on " polygamic theocracy " and the U. S. soldiers had come down with bristling bayonets to arrest the Church, in the person of Brigham Young, whatever might have been the after consequences, those guns would have been silenced and those bayonets resisted. If the United States judges, Governor, U. S. attorney and marshal did not so understand it, they
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knew nothing really of the dangerous ground upon which they stood, when they planted in design guns upon the Church and in imagination came down with bay- onets to arrest its head.
For the historian to treat the case and circumstances of that moment in any other light, or with any different spirit would not only show a disingeneous effort, but also be inconsistent with the whole history of the Mormon people. The " Utah war " or " Utah rebellion," just as it pleases the choice to name it, is an exact example, in fact and significance, of that which would have transpired, had the attempt been made with cannon and bayonets to arrest Brigham Young to bring him into court for trial by Chief Justice Mckean. But Marshal Patrick went without the threatened guns and bayonets and met no show or disposition of re- sistance to the lawful process of the court.
On Monday afternoon, October 3rd, 1871, President Brigham Young was arrested in his residence, Salt Lake City, by U. S. Marshal Patrick on a writ issued by Chief Justice Mckean, on an indictment found under an old statute of Utah, which read as follows :
"SEC. 32. Every person who commits the crime of adultery, shall be pun- ished by imprisonment not exceeding twenty years, and not less than three years; or by fine not exceeding one thousand dollars, and not less than three hundred dollars ; or by both fine and imprisonment at the discretion of the court. And when the crime is committed between parties, any one of whom is married, both are guilty of adultery, and shall be punished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or wife.
" SEC. 33. If any man or woman not being married, to each other, lewdly and lasciviously associate, and cohabit together ; or if any man or woman, married or unmarried is guilty of open and gross lewdness, and designedly make any open and indecent, or obscene exposure of his or her person, or of the person of an- other, every such person so offending shall be punished by imprisonment not ex- ceeding ten years, and not less than six months, and fine not more than one thousand dollars, and not less than one hundred dollars, or both, at the discretion of the court."
This statute the prosecution construed and the court allowed had been violated by the said Brigham Young. It was notoriously the fact, known throughout the world, that the offense of the President of the Mormon Church against the law was that of polygamy ; and from the onset this contemptible trick of the U. S. attorney and the court, in prosecuting him upon an old Territorial statute, for an offense of which he was clearly pure, instead of upon the anti-polygamic act of Congress of 1862, was most distasteful to every honorable lawyer in America.
Marshal Patrick performed his duty in a delicate and gentlemanly manner, leaving a deputy in charge of his prisoner, whose ill health had prevented his leaving the house for several days.
The next morning after the arrest, Hon. Thomas Fitch, of the counsel for President Brigham Young, made application in the Third District Court for an extension of time until Monday to prepare, and, as his client was sick and unable to appear in court, desired that bail should be taken, as he was nominally in charge of the U. S. marshal. Deputy prosecuting attorney Maxwell objected.
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He wanted the defendant to come into court to plead to the indictment. " The people," he said, " demanded that Brigham Young should appear in court the same as anybody else." The court granted the extension of time until the fol- lowing Monday, but said the bail could not be taken until the defendant plead to the indictment.
In the afternoon, Tuesday, October 3d, D. H. Wells, Mayor of Salt Lake City, was arrested, upon a charge substantially the same as that preferred against President Young, but as the Mayor appeared in court bail was taken in his case and fixed at $5,000.
On Saturday, October 7th, Hon. Q. Cannon was arrested on the same charge.
The news of the arrest of the head of the Mormon Church flew over the wires, and in their next issues the leading journals of the country gave importance to the case.
The New York Herald of Sunday, October Ist, in its Salt Lake telegraphic correspondence gave the following to the American public.
" BRIGHAM YOUNG HAS BEEN INDICTED
"On several charges, and it is also said that he is likely to be tried the coming weck on one of the indictments.
" THE MORMONS ARMING.
"The sale of muskets and ammunition continues, and it is reported that more arm than those bought at the recent government auction sale at Camp Douglas has been disposed of.
" EXCITEMENT AMONG THE SAINTS.
" The feeling of the Mormon people, as reflected by the church organs, the NEWS and HERALD, is unmistakeably rebellious and warlike. The NEWS, the official or- gan for Brigham Young, is extremely bitter and offensive. It advocates
"OPEN RESISTANCE TO THE LAWS,
" Libels United States officials, and endeavors in every way to incite the people to open rebellion. Under these influences many persons are sending off their wives and children to points where there will be no danger. The church or- gans are doing everything in their power to fire the Mormon heart, and the result cannot but be disastrous if the fanatical element is once aroused and fully. loosed."
The foregoing were infamous lies, and were quickly after their publication so declared by the associated press agent of Salt Lake City, whose telegrams appeared in the papers of the country generally, and so far corrected the mischief done. But the dispatches to the New York Herald show clearly the villainous conspiracy that was being hatched at that time in Salt Lake City, in which the courts and the prosecution were concerned, as well as the press agent of the New York Herald, who was a willing tool in their hands. That special press correspondent of the Herald was none other than Oscar G. Sawyer, managing editor of the Salt Lake Tribune, and, as his telegram to the New York Herald will show, (bearing date September 30th,) his news of the indictment and of the business to follow was given three days before that indictment was made public and Brigham Young ar-
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rested. It signified that the special correspondent of the New York Herald had the inside track of the court and grand jury room, just as Chief Justice Mckean had the editorial stool of the Salt Lake Tribune, at his pleasure, to write editorials sustaining his own court decisions.
The New York Herald, in its issue of the 3d of October, said :
" Brigham Young was arrested yesterday by the United States marshal in Salt Lake City on an indictment charging him, under the Territorial laws, with lewd and lascivious conduct with sixteen different women, whom we may presume were, according to his creed, his wives This brings the Mormon difficulty to a crisis, and we have nothing to do but await his utter demolition in the courts and the immediate downfall of the last relic of barbarism in this free country.
The Leavenworth Bulletin of the 4th, said :
" 'The telegraph of this morning informs us of the arrest of Brigham Young by the United States authorities in Utah, to answer an indictment for bigamy, and the dispatch says, trouble is anticipated. It is feared that the followers of the prophet will rise in arms to resist this indignity offered to the head of the church, and therefore troops are being sent to Salt Lake to be held in readiness to enforce the laws. But these fears are altogether unnecessary ; the Mormons don't intend to fight ; neither do they intend to renounce polygamy. The arrest of Brigham Young may be the signal for the beginning of the exodus of the Saints from the valley to some more remote corner of the globe, but not for armed resistance ; they recognize the power of the National Government, and will not war against it ; but they will not give up their 'peculiar institution ;' it is their faith and they will not renounce it. The progress of civilization across the continent will soon drive polygamy from the valleys and mount ains of Utah, but it will ever have an abiding place in the Mormon heart. The follower of Brigham, like the red son of the forest, must soon retreat before the spirit of the age, but wherever he goes he will take his wives with him."
The Sacramento Union of the 6th took quite a common sense view and observed :
" 'The arrest of Brigham Young, and Daniel H. Wells, another of the high functionaries in the Mormon Church, with a view to test the stability of polygamy as a Mormon institution, excites more than usual attention. The public is inter- ested in knowing what the upshot of the whole affair will be. There is a preju- dice, whether well or ill founded it is not the province of this article to say, against the Mormons as a sect, entertained by a majority of the people of the United States, and it is only made stronger by their polygamous doctrines audaciously declared to be sanctioned by revelation from heaven. The prejudice is deep-rooted, and it asks for the conviction of the leaders of the Mor- mons for practices which the civilization of the day does not approve.
" The demands of the whole world have nothing to do with the case of these Mormons, and should have no weight when they are to be tried and gauged by estab- lished law. They are entitled to the protection of all the law there is, and are amen- ble only to the laws there are, and for misdeeds committed while those laws have ex- isted. These Mormons went to a distant region as our forefathers fled from England, and founded institutions of their own. They went where no State laws were
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made to extend, and the Constitution of the United States and laws made in ac cordance therewith have not in the past interfered with family relations. Mar- riage is not one of the institutions the sovereignty of the United States takes cognizance of and the declaration that the common law steps in, in the absence of anything else, and makes the polygamist amenable, is made in ignorance of the fact that the United States knows no common law, and it cannot be recog- nized anywhere except by statute. Up to a recent period the Mormons having full sway in Utah, no laws existed that militated against their peculiar institu- tions, but were in consonance with them. 'Where no laws are, no offense abounds.' An act of late date cannot go back of its enactment to punish. Ex post facto laws are prohibited, and we conceive that any act of Congress or of the Territorial Legislature, cannot punish polygamy before the enactment.
"The leading Mormons now under arrest seem to have been caught up under an act to prohibit adultery, signed by Brigham Young himself. Now, that law is to be interpreted by the spirit that dictated its passage. Manifestly not one who voted for it, or Brigham Young, who approved it, recognized its applicability to cases of polygamous practice. Their plural marriages were regarded as legiti- mate, and the law was passed to favor such marriages and to discourage prostitution. The spirit of that law has not been broken by the Mormon elders, in taking more wives than one, and it is not in the duty of the judicial authorities of Utah to give the law a different construction from that intended. If that law is all that is relied on for conviction, Brigham and Wells may well entertain sanguine hopes of non-conviction, if a fair trial be given them."
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