History of Salt Lake City, Part 70

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

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HISTORY OF SALT LAKE CITY.

The extension of the Deseret Telegraph line to Pioche, Nevada, was opened October 23d, 1871, with the following congratulatory messages :

" PIOCHE, NEV., Oct. 23, 2: 20 P. M.

"President Brigham Young-We thank you for your enterprise in placing us in telegraphic communication with the outer world.

" P. EDWARD CONNOR, CHARLES FORMAN, M. FULLER, B. F. SIDIS, HARVEY J. THORNTON, C. A. LIGHTNER, D. W. PERLEY."

" PIOCHE, 23.

" President B. Young-We opened the office here at noon to-day. Josiah Rogerson, from the Ogden office, is operator. The citizens are out in full force, greeting the event most heartily. Firing cannon, speechifying with all the conso- nants, are the order of the day. With much esteem,

"A. M. MUSSER." " PIOCHE, 23.

" Hon. W. Kirkpatrick-I send you greetings by telegraph. The Deseret Telegraph line is completed and we feel that we have stepped into the world.

" HARRY J. THORNTON." " SALT LAKE, 23.

" Col. Harry J. Thornton, Pioche, Nev .- Congratulations in return upon your escape from barbarism to civilization.

"W. KIRKPATRICK." " PIOCHE, NEV., 23.

" Gov. Woods, Salt Lake-The wires of the Deseret Telegraph Company reached here this morning. The people of Pioche greet their neighbors of Salt Lake.

" P. E. CONNER and others."

" PIOCHE, 23.

"U. S. Grant, President United States of America, Washington, D. C .- We are to-day placed in telegraphic communication with the outer world. We greet you and through you our brethren of the great nation of which you are chief.

" P. E. CONNOR and others." "' PIOCHE, 23.

" Gov. Badley, Carson, Nev .- The Deseret Telegraph Company has to-day opened communication with this place. We congratulate you on the event. It will greatly benefit our mining camp now so prosperously revived from the fire, and shipping such large quantities of bullion. We do not feel we are any longer the most distant part of your State.

" D. W. PERLEY, M. FULLER, and others."

It has been often said-more often perhaps by the Gentile than the Mor- mon-that the footmarks and finger marks of Brigham Young are found everywhere in these western States and Territories. The Deseret Telegraph line was Brigham Young's offspring, and General Connor and the principal men of Pioche, very properly said to him, " We thank you for your enterprise in placing us in tele- graphic communication with the outer world."

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CHAPTER LAIL.

THI HAWKINS TRIAL HIS POLYGAMY CONSTRUED INTO THE CRIME OF ADULTERY. FOUND GUILTY AND SENTENCED FOR THREE YEARS TO THE PENITENTIARY A CHARACTERISTIC SENTENCE. THE AMERICAN PRESS ON THE POLYGAMOUS TRIALS.

The action of the courts was resumed. The case of Thomas Hawkins came next. He was tried under the same Territorial statute under which Brigham Young and others were indicted. His crime was to be construed adultery by Sec. 32 of the statute quoted in a former chapter. A review of this case will be found in a subsequent chapter in a speech of his counsel, Hon. Thomas Fitch. Suffice here to say that he was found guilty, and on the 28th of October, 1871, sentence was pronounced by Chief Justice Mckean as follows :

" Thomas Hawkins, I am sorry for you, very sorry. You may not think so now, but I shall try to make you think so by the mercy which I shall show you. You came from England to this country with the wife of your youth. For many years you were a kind husband and a kind father. At length the evil spirit of polygamy tempted and possessed you ; then happiness departed from your house- hold, and now, by the complaint of your faithful wife and the verdict of a law. abiding jury, you stand at this bar a convicted criminal.

" The law gives me large discretion in passing sentence upon you. I might both fine and imprison you, or I might fine you only, or imprison you only. I might imprison you twenty years and fine you one thousand dollars. I cannot imprison you less than three years nor fine you less than three hundred dollars. It is right that you should be fined, among other reasons to help to defray the ex- pense of enforcing the laws. But my experience in Utah has been such that were I to fine you only, I am satisfied that the fine would be paid out of other funds than yours, and thus you would go free, absolutely free from all punishment ; and then those men who mislead the people would make you and thousands of others believe that God had sent the money to pay the fine, that God had prevented the court from sending you to prison, that by a miracle you had been rescued from the authorities of the United States. I must look to it that judgment give no aid and comfort to such men. I must look to it that my judgment be not so severe as to seem vindictive, and not so light as to seem to trifle with justice. This community ought to begin to learn that God does not interpose to rescue criminals from the consequences of their crimes, but that on the contrary he so order, the affairs of his universe that, sooner or later crime stands face to face with justice and justice is the master.

"I will say here and now, that whenever your good behavior and the public good shall justify me in doing so, I will gladly recommend that you be pardoned.

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Thomas Hawkins, the judgment of the court is that you be fined five hundred dol- lars, and that you be imprisoned at hard labor for the term of three years."

The opinions of the American press relative to these trials, should be pre- served to history ; but only a few of the mass can be quoted in illustration here.

The Sacramento Union said : "The conviction of Hawkins, at Salt Lake, for illicit cohabitation with women other than his first wife, means the conviction of the whole polygamous set of Mormons from Brigham Young down to the lowest in authority who is able to keep more than one woman. No doubt such is the object of the prosecution by the governmental officials. The end of the affair is not. however, with the decision of a court in Utah. The case will go to the Supreme Court of the United States for final settlement. If the reports have been correct, the prosecution of the Mornions for polygamy-for that is what it means-is un- dertaken, not under a statute of the United States, but a law of Utah, signed by Brigham Young himself in 1852, and which was not designed to cover a case like that which the polygamous elders of the Mormon church present. How they can be held amenable under a statute of their own not intended to be applicable in cases of plural marriages has not been explained. The intention of the act must be known to know its meaning. If there is any other law by which these sultans of the American desert can be punished, it would seem that the United States courts ought to resort to that as sure to bring conviction and punishment. The arraignment under a law that was clearly not intended to strike at polygamy is a virtual admission that there is nothing better in law to which the authorities can go. The proposition is not disputed that the Territorial law was not intended to forbid or punish polygamy, and how it can be used in such cases as that of Brigham Young has not been elucidated, except that the prosecution is only intended as an annoyance, or to provoke hostilities, knowing well that the weaker and the despised will be the sufferers in the end.

" As we have said in former articles we have no sympathy with the peculiar institutions of the Mormons, nor much respect for their pretended faith. But laws are laws, and should be executed according to their real intent and meaning. We very much fear that this raid on the institutions of the Mor- mons is dictated more by popular hate than springing from an honest desire to rid the Territory of Utah of an institution that has not the sanction of the civilized world."

The Carson Register said in its review of the case :

"To convict Hawkins it was necessary to give a statute a different meaning from that intended by its authors, and to impute an evil intention where the re- verse was known to exist. The presiding judge in excluding all Mormons from the grand and petit juries, cited California authorities to show that courts are bound to take judicial cognizance of the political and social condition of the country which they judicially rule. If this was true in empaneling the jury, it is difficult to perceive by what logic the judge refused to take cognizance of the political and social condition of the country when Hawkins married his second wife. What. ever opinion one may entertain respecting the Mormons, or polygamy, no un- biased observer can read the proceedings of this trial as detailed by the journals

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of Salt Lake, without feeling that the court was organized to convict without much regard to law. *

" If the verdict and the rulings of the court are sustained, this case is likely to mark the beginning of a social revolution in Utah and the breaking up of this extraordinary society ; but even this result will scarcely offset the judicial usurpa- tions by which it is brought about."

But the Sacramento Union and the Carson Register were in error relative to the power of the defendants to appeal their cases to the Supreme Court of the United States. At that date there was no such power of appeal. Had there been the cases of P'resident Young and others of the Mormon leaders would have been very different. Mr. Fitch boldly proclaimed to the country that, in the absence of the power of appeal, for Brigham Young and his compeers to go into Judge Mckean's court was to go " not to justice, but to doom."

The Albany Law Journal published in Judge Mckean's own State, and edited by a legal gentleman who claimed long personal acquaintance with Judge Mckean said :

'. The indictment of Brigham Young and the conviction of Hawkins were brought about under a statute against adultery and lascivious conduct passed by an exclusively Mormon legislature in 1852. That the act was intended to cover cases of the kind no one believes, and it may be fairly questioned whether polyg- amy can be treated as a crime under it. That Chief Justice McKean is a pure and honest man we know, having known him for years before his elevation to the bench, but we know him also to be a man of strong convictions and unyielding prejudices. These latter qualities he has displayed in his present position scarcely becoming the ermine. Justice ought to be severe and awful, too, but it ought at the same time to be impartial-to sit calm and unmoved above the storms of prejudice and passion that rage beneath. His decisions we do not ques- tion, but the language accompanying those decisions have been often so intemperate and partial as to remind one of those ruder ages when the bench was but a focus where gathered and reflected the passions of the people.

" Of the Mormon people much may be said in praise as well as in blame. They have, no doubt, trampled upon one of the strongest traditions of civilization, but they have also done some service to the State. Driven from one point to another by mobs as bad as the worst of them, they at length made a hegira quite as remarkable as the 'Flight of the Tartar tribes,' to the wilderness of Deseret and established a commonwealth which has prospered almost beyond example. Aside from polygamy they obeyed the laws quite as well as most new western com. munities, and they have never failed to respond promptly to any calls made upon them to aid in defending the country or in prosecuting its wars. For a quarter of a century their peculiar institutions have been tolerated by the Government ; so long, indeed, as to justify them in assuming that they had become leg ilized by prescription. In view of these facts we have no hesitation in saying that the jus- tice that is now meted out to them should be tempered with mercy, and that neither the chief justice nor his followers will gain an imperishable renown by an uncompromising crusade."

Daniel IC Wells

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The Methodist Church on its part without reluctance owned the parentage of the crusade against the Mormons. Zion's Herald, their official organ, said :

" We find Brigham Young was not so far out of the way in declaring that the present judicial movement of the Government against his system, and even against his own immaculate person, is due to the Methodists; Dr. Newman's argument in the Temple began the war. Our missionaries organized it by fortifying themselves on the field, and the camp meeting brethren gave it the last stroke before the arm of the State was raised to carry out its just decrees. We have seen members from the committee and from Judge McKean, the brave man who is doing this work confirmatory of these facts. One of the ministers writes that during the delivery of the Rev. W. H. Boole's powerful sermon on polygamy in the presence of Brigham Young, Orson Pratt, George Q. Cannon and three thousand Mormons, the entire mass literally shook and quailed under the mighty power of God."

Had the Methodist Zion's Herald designed irony it could have more aptly said, these Mormon elders " literally shook and quailed in the presence of the Rev. W. H. Boole as Brigham Young did in the presence of Dr. Newman, and as did Orson Pratt when he discussed the subject of polygamy with the Chaplain of the Senate, and provoked him by a signal defeat to vent his evangical wrath in this crusade."

CHAPTER LXIII.

ARREST OF MAYOR DANIEL H. WELLS ON A CAPITAL CHARGE. ' HE GIVES HIMSELF UP FOR THE SAFETY OF THE CITY AND IS SENT A PRISONER TO CAMP DOUGLAS. STRUCK BY HIS CONDUCT CHIEF JUSTICE MCKEAN, UN- EXPECTED BY ALL, GIVES THE MAYOR BAIL. PRESIDENT YOUNG GOES SOUTH FOR HIS HEALTH. THE U. S. ATTORNEY CLAIMS THE FORFEIT OF HIS BONDS. SENATOR MORTON IN COURT. HE CENSURES MCKEAN'S PROCEEDINGS AND CREATES A RE-ACTION IN THE PUBLIC MIND.

On Saturday afternoon, October 28th, 1871, Daniel H. Wells, mayor of Salt Lake City, was arrested for the alleged crime of murder. Hosea Stout and Wm. H. Kimball were arrested on a similar charge. The indictment charged Daniel H. Wells, Hosea Stout and others, with having been accessory in the killing of one Richard Yates at the mouth of Echo Canyon. By his own confession, the notor- ious Bill Hickman was the man who did, in fact, commit the murder ; but he sought, or was induced by the prosecution, upon the promise of immunity for all his crimes, to implicate Mayor Wells and others ; and it was upon the indictment found through the testimony of this notorious murderer that Mayor Wells was arrested.

The facts were briefly as follows : The said Richard Yates, during the period of the " Buchanan war," was taken a prisoner as a spy. He fell into the hands

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of the notorious Hickman to guard; but it is thought that the murderer, knowing or believing that Yates had considerable money in his possession, at night mur- dered his victim to obtain it.

During the session of the court, on the same afternoon of the arrest, the marshal came in accompanied by Daniel H. Wells and his counsel Mr. Fitch, who asked the judge when he could hear an application for bail.

Attorney Maxwell said the indictment was for murder in the first degree, which was not a bailable offense. Mr. Fitch said the court is the judge of the case, and may release the defendant, or not, after examining the evidence as to the probabilities of the crime. The court fixed Monday at 10 o'clock A. M., as the time for hearing the case. Subsequently Hosea Stout was brought into court under arrest, on the same charge, and the same order taken as to his case. The gentlemen were conveyed prisoners to Camp Douglas in the evening.

On Monday morning, October 30, there was a large attendance in the Third District Court, when the prisoners, Daniel H. Wells and Hosea Stout were brought into court. Mr. Fitch stated that the case would be argued on an application to the court for a writ of habeas corpus to bring the prisoners before the court to be held to bail. Mr. Hempstead argued that the grand jury erred in charging the defendants with murder in the first degree, which was properly the province of the petit jury, and that it was within the discretion of the court by the rules, practices and precedents of common law to admit to bail in capital cases, except where the evidence of guilt is clear and the presumption strong ; that the princi- pal witness in the case is one of the parties charged in the indictment, and by his own confession the perpetrator of a most bloodthirsty and diabolical murder. He also called attention to the position of the defendant, Wells, as Mayor of Salt Lake City ; of his knowledge of this indictment for a month past by common rumor, and that there had been abundant time and opportunity for escape if it had been desirable.

Mr. Baskin followed, insisting that bail should not be given, and Mr. Fitch was about to close the argument in support of the writ when Judge Mckean in- terposed as follows :

" Without intending to have it regarded as a precedent in any other case, I will hold that I have power to issue a habeas corpus and bring these prisoners before me, and as they have come in, being brought here by an officer during the progress of the argument, I will regard them as being here on the return of a writ of habeas corpus. I will therefore say, that although I was well aware before this argument, that in Great Britain and the United States a prisoner charged by indictment with a capital offence is almost never admitted to bail, still I was willing to be convinced that in this case it would be right to depart from the almost universal rule. Not only willing but anxious to be so convinced ; nay, more, I have tried to convince myself by arguments in addition to those of the counsel thit it would be right and expedient to do so in this case.

" In the case of the people against Daniel H. Wells, his counsel properly say that the defendant is the mayor of the city, and is at the head of the police force. Camp Douglas, the place where prisoners awaiting trial in this court are usually detained, is some miles distant from the City hall, and from the residence of the

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mayor. In that case it would be practically impossible for the mayor to attend to any of the duties of his office, and therefore he could not be held responsible for the quietude and good order of the city. I will therefore admit him to bail. ( Applause in the court. )

" In the case of the people against Stout, I will further consider the application and the arguments, and will reach and announce my conclusion hereafter. "

Mr. Maxwell said the prosecution would like to be heard on the question of the amount of bail, and he would fix it at $500,000.

The Judge replied, " No, the defendant will give bail in the sum of $50,000."

Mr. Baskin asked, if it should be found that the court had not power to grant bail in capital offenses, whether the bond taken would be valid and binding. -

The Judge said that he would not allow his decision in this case to be con- sidered or quoted as a precedent.

Mr. Fitch stated that he would not pursue the argument in the case of Hosca Stout, as he had intended, but leave it with the court which had so promptly set- tled the case of Daniel H. Wells.

The decision of Judge McKean, to give bail to Mayor Wells, astonished the entire city both Mormon and non-Mormon. There was probably not a single soul ni the city who expected such a decision, excepting the accused himself, who seems at the moment to have risen to that sublime pitch of trust in Providence that he would be delivered, which possess some men in the supreme moments of their life. It was Mayor Wells himself who prompted Mr. Fitch to apply to the court of Judge McKean for a writ of habeas corpus to be brought before the court to be held to bail. Mr. Fitch said it would be in vain ; Judge Mckean would not grant the bail ; but the Mayor persisted in the inward prompting that "the Lord would interpose" and thus spurred by the faith and judgment of the prisoner, counsellor Fitch sat down Saturday night and all day Sunday to his work and prepared one of the most masterly efforts of his life, which, strange to say, Judge Mckean pre- vented in its delivery by granting the bail.

The applause in the court was as genuine as the surprise was great, from non- Mormon as well as Mormon. There were, perhaps, not half a dozen persons in the court who were dissatisfied with the act of Judge Mckean that day, and the chief of these were the U. S. prosecuting attorneys. The decision of the Judge once made, the majority felt that the act was right ; for, however easy it is to lead men away, through their prejudices and passions, by a quick instinct of nature, they realize when their leading man unexpectedly pursues a right course. But Baskin and Maxwell were overwhelmed with astonishment and anger, as their con- duct showed. Maxwell, in his demand for the bail to be fixed at half a million dollars, was at once savage and preposterous, and his manner and abrupt state- ment to the court that the prosecution would like to be heard on the question of bail, was not the conduct or interruption of his will that James B. McKean usu- ally tolerated, as his short, sharp reply evinced-" No, the defendant will give bail in the sum of $50,000 "-enough, surely, but ten times less than the malice of the prosecution demanded. Indeed, Baskin probably would of himself not have consented to bail at a million. When the decision was rendered his coun- tenance changed to a leaden hue, and his enquiry, hard and biting with sup-

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pressed passion-" lt it should be found that the court had not power to grant bail in capital offenses, whether the bond taken would be valid and binding;" was very much in the spirit of a rebuke to the Judge for failing the prosecution in so important a case as the commitment of Daniel HI. Wells, one of the Presidents of the Mormon Church, and lieutennat-general of the Nauvoo Legion, to prison for muuder for a lengthy period. Judge MeKean saw the Mayor of Salt Lake City at the bar, and the peace and safety of the city resting upon him, and wisely made that his own plea for bail, added to the plea of counsel; but Mr. Baskin saw the Mormon leader, whose courage in going into the lion's den was behind the will of Brigham Young, supporting the whole Mormon community at that moment, just as it had done in 1857, during the Buchanan war.

General Wells,'however, would have been perfectly safe at Camp Douglas, in the hands of that gallant, honorable soldier, General Morrow, whose guest he was on the Sabl ath, rather than a prisoner, and at whose table he ate with the General and Mrs. Morrow, at whose respectful request the honored prisoner asked a bles- sing over the food.

But as before observed, Judge MeKean on this occasion took the proper view of the case of bail, for once at least upon such a charge. The peace, good order and safety of Salt Lake City needed the presence of its mayor, as Mr. Baskin would have found in those days, had the acts of Carthage jail been attempted with these Mormon leaders.

The prosecution had during the past months given a fair preliminary to such business, and righteous American statesmen and the soundest American journalists, as we have seen, had not hesitated to say as much.

On Monday, November 20th, the case was called up in court of the People v's. Brigham Young, sen.

Mr. Baskin said the prosecution were ready to proceed with the case.

Counsel for defence asked for the postponement of the case till the March term, according to previous expectation, based upon the promise of the court, im- plying the grant of time to both sides till the March term.

Mr. Baskin said it was known only from public rumor that the defendant had gone outside the jurisdiction of this court, and the prosecution should demand a showing and a forfeiture of his bonds in case of non-appearance.

Mr. Hempstead said President Young will be ready for trial whenever the court shall set down his case ; with the understanding of his counsel that a reason- able time would be granted for trial, the defendant had taken his usual winter journey to the south for protection of his health against the severity of the climate.

Mr. Baskin rebuked the counsel for so advising the defendant.

The court said it would take the request for further time into consideration.

The case was called up again on Monday, the 27th.

Baskin said he should insist upon the default of the recognizance.

Judge Snow said the counsel for defendant would only ask a reasonable time to bring him here.

BASKIN-" I insist that I am now entitled to a forfeiture of the bond."

Mr. Hempstead said that if the gentleman was really honest in his desire to have the forfeiture of the bail of the defendant, he ( Hempstead) could not believe

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it was for the purpose of having it heralded to the world that Brigham Young had forfeited his bail and fled from justice. The counsel reviewed the ineffectual at- tempts which the defense had made early in the term to have a day fixed for trial. No bail had ever been forfeited under such circumstances. No defendant is ex- pected to appear in court room from day to day to await trial. The forfeiture would be unjust under such conditions. If the court could not continue the case until the March term, the defense would ask for a day to be set as far in advance as possible.

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History of Salt Lake City, Part 70

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