History of Salt Lake City, Part 69

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

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The Omaha Herald of the 6th said :

" In all the past agitations in Utah, relying upon the law-abiding character of a people by all odds the most orderly, and in most respects the best governed whom we have ever known, we steadily refuse to accept the theory of what has been called a Mormon war. But there is a crisis now impending there involving imminent danger of outbreak into open violence and bloodshed. We do not say that this will positively occur, but the danger of it is imminent, and it will not surprise us at any moment to hear of such a disaster.

" In view of the vast interests that would be involved in such an event, we look upon it as a possibility, nay, an imminent probability, that is calculated to excite the gravest apprehensions. The men who are bent on producing this ca- lamity must be checked in their mad career, or it will be perfectly certain to oc- cur. They can neither incarcerate nor hang Brigham Young, Daniel H. Wells, George A. Smith, George Q. Cannon and other men of this stamp under the forms of law, without raising a storm which even these men would be powerless to con- trol, and which would be sure to result in a great destruction of property and other interests, as well as of life. The mining and railroad interests would be vastly damaged if not temporarily destroyed by such a conflict. And there is no use in mincing matters. Plain talk is what is now wanted, and the authorities at Washington should be promptly invoked to avert these possible disasters. They concern great interests outside of Utah, as we shall most certainly ascertain if matters there are pushed to extremities.

" The Mormon people are an honest people. They are terribly in earnest in

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upholding their religion. Deluded they undoubtedly are, but this does not alter the fact that no people round the earth are more ready to do, dare and dic than they are in defence of their religious faith and institutions. Driven to despair of justice at the hands of their avowed enemies, there is not a true Mormon in all Utah who would not put the torch to his own home, and return the garden which his labors and sacrifices have produced, to its original wilderness of desert. Ar- mies cannot prevent general ruin and desolation in that Territory, if ever the flame of war is lighted."

In the afternoon of the appointed day, at about two o'clock, a number of car- riages were seen coming briskly down the State Road from the President's office and to turn into Second South Street driving towards Faust's Hall, where the court was held. In those carriages were Brigham Young, John Taylor, George A. Smith, Daniel H. Wells, George Q. Cannon and John Sharp, and other repre- sentative Mormons. The President was evidently under the protecting care of an escort of picked men whose presence in court would be unpronounced, but who were not only the guardians of the life and person of Brigham Young, but of the court itself, and the peace of the city at that critical moment.

The Salt Lake Tribune, in its leading editorial of the Ioth of October, under the head of " Brigham Young in court," said :

" It was a decidedly novel spectacle yesterday afternoon to see the ' Lion of the Lord ' sitting in the court room waiting for the coming of his earthly judge to try him. It suggested the greater and more solemn occasion when he shall go before the judge of all flesh to give an account of the deeds done in the body, whether good or evil. If they be good, as his apologists and disciples affirm, then there is no matter about the contrary opinions of enemies and charges of his ac- cusers ; if they be evil, the mistaken confidence of his people will not shield him from condemnation, nor will he be able to employ two archangels of the court of heaven to defend him.

" 'There can be no doubt that the President of the Church of Jesus Christ of Latter-day Saints made several very good points yesterday. His being there a quar- ter of an hour before Judge McKean patiently waiting his coming, was very wisely arranged and looked well on an occasion which opens a series of circumstances destined to form a chapter of history. His appearance in court too -- his quietude, and an altogether seeming absence of a spirit chafing with rage at being brought to trial, evidently made a good impression. If there were any malice against him before, the sight of Brigham Young, at least practically acknowledging the authority of the United States to try him, even for the highest crimes known in the law, and the respectful bearing which he put on, disarmed much of that malice. The moral effect of Brigham's appearance and the conviction of innocence which it pro- duced, brought Major Hempstead to his defense, and he plead very powerfully in his behalf, occasionally throwing a spice of wit at the prosecution. The editor of the Vidette, who sought years ago to 'reconstruct and regenerate ' Bro. Brig-

ham, yesterday afternoon eloquently objected to the proposition to reconstruct and regenerate the prophet and urged the indictment should be quashed.

"It is evident that President Young's thus coming into court, and his resolu- tion to abide every trial, and contest the charges brought against him, constitu-

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tionally through his counsel, was the very wisest course he could have taken. It will divide people in his favor and bring many of the Gentiles to the help of Israel even as it has already brought two of their lawyers to the defense of the prophet. Perhaps there was more respect and sympathy felt for Brigham Young, when he left the court-room, feeble and tottering from his recent sickness, having respect- fully sat in the presence of his judge three-quarters of an hour after bail had been taken, than ever there was before in the minds of the same men "

This case of the United States vs. Brigham Young for polygamy is rendered more memorable, as well in the general history of Utah, as in the record of crim - inal jurisprudence, by the famous opinion of Chief Justice Mckean, overruling the motion of the defendant's counsel to quash the indictment. We give the document entire that it may be preserved to history.

"OPINION OF JUDGE MCKEAN.

" On the motion to quash the indictment of Brigham Young.

" Territory of Utah, Third District Court-ss.

" The People of the United States of Utah, vs. Brigham Young.

" September Term, 1871, Salt Lake City.

"OPINION OF CHIEF JUSTICE MCKEAN .- STATEMENT .- The defendant is in- dicted for lewd and lascivious association and cohabitation with sixteen women, not being married to them. The indictment is under the following statute :

" ' If any man or woman, not being married to each other, lewdly and lasciv- iously associate and cohabit together.' * * * ' Every such person so offending shall be punished by imprisonment not exceeding ten years, and not less than six months, and fined not more than one thousand dollars, and not less than one hundred dollars, or both, at the discretion of the court.' Laws of Utah P. 53, Sec. 32.

" The indictment contains sixteen counts and charges as many offenses, ex- tending from the year 1854 to the present time, there being no statute of limita- tions. The defendant moves to quash the indictment on the following grounds : " Ist. That in said indictment, as appears upon the face thereof, this de . fendant is charged with sixteen different felonies, alleged to have been committed at sixteen times and places, with sixteen different persons, the same not being different parts of one offense, nor different statements of the same offense or such alleged felonies being in anywise connected with each other.

" 2nd. That each and every count in the same indictment, as appears upon the face thereof, is of vague, uncertain and indefinite in the allegation as to the time when said offenses, or any of them, were committed.

" R. N. BASKIN, U. S. Attorney, and G. R. MAXWELL, for the people.

" FITCH & MANN, HEMPSTEAD & KIRKPATRICK, SNOW & HOGE, A. MINER, LE GRAND YOUNG, and HOSEA STOUT, for defendant.

" MCKEAN, C. J.

" Although the question of selecting, summoning and empanelling the grand jury which presented this indictment, is not involved in the motion before the court, one of the counsel for the defendant saw fit, in his remarks, to denounce the jury as having been selected and empanelled in a manner unprecedented either in

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Europe or America. Had the counsel first investigated this question, he would have found that when Brigham Young was Governor of the Territory, and his selected friend, Judge Snow, now one of his counsel, sat both upon the district and the su- preme bench of the Territory, grand jurors were for years selected, summoned and empanelled precisely as they now are. And the counsel would also have found that in repeated cases United States judges, even within the States, have sometimes found the State statutes inapplicable, and have ordered juries to be procured sub- stantially as they are procured in this Territory.

" But all this has nothing to do with the motion before the court which is tu quash the indictment-not the grand jury that found it. Let us return, therefore, to the record.

" One of the counsel for the defendant has rightly said, that the court should render such decision upon this motion as shall subserve the interests of the public and the rights of the defend int. What are those interests? What are those rights? It is agreed by counsel on both sides, that at common law the court might either grant or refuse the motion, in the exercise of a sound discretion. Many authorities were cited on the argument, sustaining this proposition. One of the counsel for the defendant sought to account for the fact that there seems to be a preponderance of authority against the granting of a motion to quash, by conjecturing that when such motions are granted they are not often reported. He also urged that this court is not bound to respect any decisions rendered outside of this Territory, unless they be rendered by the Supreme Court of the United States.

"Without pausing now to consider those arguments, let us proceed to enquire -what are the interests of the public and the rights of the defendant, as involved in this motion ? It is unquestionably to the interests of the public that a man indicted for crime, if guilty should be convicted ; if innocent, acquitted ; and that, tco, with as little delay as may be consistent with the rights of the accused, and with those safeguards which experience has approved. But will it promote the interests and rights either of the public or of an accused citizen, to have many indictments and many trials for offenses of the same class, rather than one in- dictment and one trial covering the whole ? The court is bound to presume that the evidence before the grand jury authorized, nay required, the sixteen charges contained in this indictment. If now the court should grant the motion of the defendant, and quash the indictment because it contained these sixteen counts, the grand jury, which is not yet discharged, would be in duty bound to find six . teen new indictments. Or if the court should compel the prosecution to elect to go to trial on some one count only-striking out the others, then the grand jury would be in duty bound to find fifteen new indictments. Thus, in either event, the defendant would be subjected to sixteen indictments and sixteen trials. How this could promote the rights and interests either of the public or of the defend- ant, it is not easy to perceive ; nay, it is difficult to imagine anything more har- assing and vexatious to the defendant. Indeed the learned counsel for the defendant failed to show wherein this would be any favor to their client. Had sixteen indictments been found in the first instance instead of one, could not the defendant's counsel urge with irresistible arguments, that they should be consoli- dated ?

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" But is there not some legislation bearing upon the question ? By act of Congress, approved February 26, A. D. 1853, it is provided that 'whenever there are or shall be several charges against any person or persons for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments, the whole may be joined in separate counts ; and if two or more indictments shall be found in such cases, the court may order them consolidated.' ( 10 Statues at Large, page 162 ; I Brightly's Digest, page 223, Sec. 117. )

" What is the just construction of this statute ? Notwithstanding the ingen- ious efforts of one of the counsel to induce the court to disregard the views, reason- ings and opinions of other courts, still it may be prudent, first to listen to those courts and see if their decisions be reasonable. The United States vs. Bickford (4 Blatchford's circuit court rep. 337) the indictment contained one hundred counts, each one being for a distinct felony, but of the same class. On motion to quash, the court refused, holding that the joinder of the distinct felonies was warranted by the statute quoted above. In the United States vs. O'Callahan (6 McLean's circuit court rep., 596), the same doctrine is held. These decisions are entitled to great respect, having been rendered by eminent judges of the Su- preme Court of the United States and their associate district judges. Indeed so obvious, reasonable and just are they that, were the question a new one, I do not see how I could reach a different conclusion.

" In considering the second ground of motion to quash, the meaning of the words 'associate ' and 'cohabit' must be carefully kept in mind. Webster defines 'associate' thus: To join in company, as a friend, companion, partner or confed- erate. * * It conveys the idea of intimate union. He thus defines ' cohabit' : To dwell and live together as husband and wife ; usually or often applied to persons not legally married.

" The offense charged in each count could not be predicated of any one moment or instant of time. To commit such an offense, a continuous and somne- what protracted period of time is necessary. There is nothing in this objection.

" The learned counsel for the defendant need not be assured that any motion which they may make in behalf of their client, shall be patiently heard and care- fully considered. Nor does the court intend to restrict them in their arguments, except upon questions already adjudicated. But let the counsel on both sides, and the court also, keep constantly in mind the uncommon character of this case. The supreme court of California has well said : 'Courts are bound to take no- tice of the political and social condition of the country which they judicially rule.' It is therefore proper to say, that while the case at bar is called, ' The People ver- sus Brigham Young,' its other and real title is, ' Federal Authority versus Polyg- amic Theocracy.' The Government of the United States, founded upon a written constitution, finds within its jurisdiction another government claiming to come from God-imperium in imperio-whose policy and practices are, in grave partic- ulars, at variance with its own. The one government arrests the other, in the person of its chief, and arraigns it at this bar. A system is on trial in the person of Brigham Young. Let all concerned keep this fact steadily in view ; and let

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that government rule without a rival which shall prove to be in the right. If the learned counsel for the defendant will adduce authorities or principles from the whole range of jurisprudence, or from mental, moral or social science, proving that the polygamous practices charged in the indictment are not crimes, this court will at once quash the indictment and charge the grand jury to find no more of the kind.

" The pending motion to quash is overruled."

CHAPTER LXI.

MASS MEETING CALLED BY THE MAYOR OF SALT LAKE CITY TO ASSIST THE SUFFERERS OF THE CHICAGO FIRE. RESPONSE OF MORMON AND GEN- TILE. DONATIONS LED BY BRIGHAM AND THE CITY. "ONE TOUCH OF NATURE." THE TELEGRAPH TO PIOCHE COMPLETED. CONGRATULA- TIONS AND THANKS OF CONNOR AND OTHERS TO BRIGHAM YOUNG.

At this moment there occurred in America one of those great calamities, which though awful in its consequences to a hundred thousand human beings, sounded to its depths the great heart of mankind, and made every city in the Union re- sponsive to the call of our National brotherhood and sisterhood. It was the Chicago fire. The Mayor of Salt Lake City immediately issued the following :

"PROCLAMATION,

" The news having been confirmed of the terrible conflagration by which a great portion of the city of Chicago has been reduced to ashes, and one hundred thousand people have been stripped of their homes, clothing, and means of sub- sistence, therefore,

"I, Daniel H. Wells, Mayor of Salt Lake City, by the wish of the city coun- cil of said city, call upon all classes of the people to assemble in mass meeting to- morrow, Wednesday, October 11th, at one o'clock r. M. in the old tabernacle in this city, for the purpose of making subscriptions and taking such measures as are demanded for the relief of our fellow citizens who are sufferers by this dreadfu visitation.

" DANIEL H. WELLS, Mayor. "October 10th, 1871."

Just at this moment there arrived in Salt Lake City (October 10th, ) the Hon. O. P. Morton, U. S. senator from Indiana, one of the most prominent men of the nation, accompanied by his wife and child, Maior Beeson, W. P. Fishback, wife and child, W. Clinton Thompson, Mrs. Lippincott (Grace Greenwood) and Dr. Clark, brother of the last named lady. Their coming at that juncture had there- after considerable influence in Utah affairs, Senator Morton and his companions

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setting their faces sternly against the judicial procedure of those times, while Grace Greenwood joined with our citizens in raisingsubscriptions for the Chicago sufferers.

In pursuance of the call of Mayor Wells, a large number of citizens met at the old tabernacle, when Mayor Wells was called to the chair and Hon. George Q. Cannon appointed secretary. The following committee was also appointed by the meeting, to receive subscriptions from the citizens of Salt Lake and the ad- joining mining camps : John T. Caine, David E. Buell, Warren Hussey, S. Sharp Walker, A. S. Mann, Theodore McKean, William Jennings and William Calder. Hon. William H. Hooper and Hon. Thomas Fitch made appealing addresses, and then Hon. Frank Fuller stated that he was authorized to say that a lady of great literary distinction, Mrs. Lippincott-Grace Greenwood-would gladly contribute the proceeds of a lecture to the fund, which announcement was received with ap- plause, and the distinguished lady invited to the stand by Mayor Wells to make a few remarks. She said substantially " that the good book informs us that out of the abundance of the heart the mouth speaketh, but she could not express the feelings of her heart in view of the terrible calamity which has afflicted Chicago, where she had many generous friends. She would like to do something to relieve this sorely stricken people. She rejoiced to see people of all opinions coming together to carry out the common obligations of humanity. This would do much to heal all these unhappy differences ; (referring to our local prosecutions). It seems to be time for some women to speak of the poor children dying of exposure in the streets of Chicago. But I cannot talk of them. You gentlemen all know what is due to the gravity of such an occasion."

Mayor Wells said that the amounts subscribed should be forwarded to him at the City Hall at once, in order that he might place it in bank subject to the order of the Mayor of Chicago. He also said that a benefit would be given at the theatre in aid of the fund. Subscriptions were then announced led off by Brigham Young, $1,000 ; Salt Lake City, $1,500; Daniel H. Wells, $500; William Jen- nings, $500; William H. Hooper, $500 ; Buel & Bateman $500, and a number more of lesser sums, amounting to $6,286, subscriptions donated at this meeting alone and nearly all from Mormon hands.

The Masonic Brotherhood also inaugurated a subscription; other public meet- ings were held for a similar purpose ; a large benefit was given at the Salt Lake theatre ; Grace Greenwood gave her lecture, realizing for the fund nearly $300. Altogether quite a handsome sum, about $20,000, was gathered in Salt Lake City to relieve the Chicago sufferers.

Mrs. Lippincott seems to have been both surprised and considerably affected by the hearty manifestation of a deep human nature during the rage of a "Chris- tian " crusade against them, and she wrote to the New York Herald as follows :

" In the old tabernacle, yesterday, we attended a mass meeting, called by the Mayor, to raise money for the relief of the Chicago sufferers. Here we saw Brigham Young, and I must confess to a great surprise.

" I had heard many descriptions of his personal appearance, but I could not recognize the picture so often and elaborately painted. I did not see a common, gross looking person, with rude manners, and a sinister, sensual countenance, but 27

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a well dressed, dignified old gentleman, with a pile, mild face, a clear grey eye, a pleasant smile, a courte ous address, and withal a patriarchal, paternal air, which of course, he comes rightly by. In short, I could see in his face or manner none of the proffigate propensities, and the dark crimes charged against this mysterious, masterly, many-sided and miny-wived man. The majority of the citizens of Salt Lake present on this occasion were Mormons, some of them the very polygamists arraigned for trial, and it was a strange thing to see these men standing at bay, with 'the people of the United States' against them, giving generously to their enemies. It either shows that they have underlying their fanatical faith and Mohammedan practices a better religion of humanity, or that they understand the wisdom of a return of good for evil just at this time. It is either rare Christian charity or mas- terly worldly policy. Or, perhaps, it is about half-and-half. Human nature is a good deal mixed ont here. But I do not suppose it will matter to the people of dear, desolate Chicago what the motive was that prompted the generous offer- ings from this fair city among the mountains. The hands stretched out in help, whether polygamie or monogamic, are to them the hands of friends and brothers. Certain it is that the Saints seemed to give gladly and promptly according to their means. President Young gave in his thousand and the elders their five hundred each as quietly as the poor brethren and sisters their modest tribute of fractional currency. It is thought that Utah will raise at least $20,000.

" There is to me, I must acknowledge, in this prompt and liberal action of the Mormon people, something strange and touching. It is Hagar ministering to Sarah ; it is Ishmael giving a brotherly lift to Isaac."

Coupled with this instance of ready and generous help extended to the Chicago sufferers by our citizens, which so warmed the hearts of Senator Morton, Grace Greenwood and their party toward the Mormon community, may be recorded here one of the many services which Salt Lake city has contributed to the settling and growth of the l'acific States and Territories. It will be remembered by the reader, that not only was the virgin city of the Great Salt Lake, in 1849, the half- way house of the Nation in her peopling of the west, after Mormon shovels under their foreman, Thomas Marshal, had turned up the gold of California, but that Utah for years afterwards aided in settling and feeding the younger Territories around her, which had grown up since the founding of Salt Lake City, and which her own colonizing activities had nursed in their infancy. As noted in the early chapters of this history, in 1854-5, the Mormon colonists pushed forward to the western frontier of this Territory and settled a large portion of the country now known as Nevada. These under Orson Hyde organized the whole of that district under the name of Carson County, which county was represented by Hon. Enoch Reese, a Mormon pioneer merchant. The first house in Genoa was built by Col. John Reese of Great Salt Lake City, and was called Reese's station. Some of our principal Salt Lake merchants were also the first merchants of Nevada : William Nixon, Joseph R. Walker (in the employ of Nixon), William Jennings, Christopher Layton and a number of others, first class men in the formation of a new colony, went out from Salt Lake City, to establish Carson County ; and now in 1871, our city continued its good service to Nevada in extending to that State its local tele- graph line.

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History of Salt Lake City, Part 69

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