History of Salt Lake City, Part 71

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

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Baskin contended that the bail had been legally forfeited, and that this case should be treated by the same rules as any other case. The defendant was bound to hold himself within the jurisdiction of the court, but since the indictments for several murders had been found against him he had disappeared. According to his counsel's statement he was three hundred miles away, and he may be out of the jurisdiction of the Territory. He had not only technically but literally vio- lated his bond, and the forfeiture was asked because it was a legal right. The court cannot take the word of the counsel to account for the absence of a defen- dant who has absconded. The counsel has no legal right to advise a prisoner to leave the jurisdiction of the court. The prosecution would be ready to open up when the accused should appear and purge himself of contempt.

The judge said he would not grant the motion but fix Monday next, Decem- ber 4th, at 10 o'clock A. M. as the day for the trial of the case.

The counsel for the defendant said they could not probably be ready at that time and asked for two weeks. The defendant could not be brought to the city in a week. The Judge said the counsel should have considered these things be- fore, and cut off all further objections with the remark : "The day of the trial has been fixed for a week from to-day."

On the day set for the trial, the new U. S. district attorney, Bates, was pres- ent, and, having presented his commission, took the oath of office.

In the case of the People vs. Brigham Young, on motion of Mr. Bates, de- fendant was called, and, not appearing, a motion was made to forfeit his recogni- zance, against which Mr. Hempstead entered his protest.

Finally the Judge adjourned the court to the 9th of January, refusing to grant the motion to forfeit the recogniz ince of defendant ; and Mr. Bates stated that on the 9th of January he would call up the case of the People vs. Brigham Young, and press it for trial.

At about this time a change came in the action of the department of justice in these Utah prosecutions, and fair minded men of the nation demanded of the U. S. Government that it should stop the disgraceful and illegal proceedings of McKean's court. The influence of Senator Morton was probably the first and most potent brought to bear in this matter, and immediately thereafter Senator Lyman Trumbull threw the weight of his name and statesmanship in the same direction, which resulted in Baskin and Maxwell being superseded by the appoint- ment of a new U. S. district attorney and earnest efforts by the Attorney General Aker man and Solicitor General Bristow to parge the U. S. courts of Utah of the flagrant misrule that had brought the censure of Republican statesmen of the character of Morton and Trumbull, and finally resulted in the setting aside of two

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years of Mckean's doings, as illegal, by the august decision of the Supreme Court. The arrival of Senator Morton and party in Salt Lake City has been noted, and the part which Grace Greenwood took with our citizens in the relief of the Chicago sufferers, sufficiently suggest the free and frank exchange of views that passed be- tween Senator Morton and his friends with the Mormon leaders and their course relative to the pending affairs of Utah. During the argument of the motion to quash the indictment against Brigham Young, Senator Morton, being a cripple, was carried up into Faust's Hall, where Mckean was holding court, and where Newman had preached to a Methodist congregation on polygamy. On this oc- casion (the writer was present) Senator Morton had an excellent opportunity to appreciate the doings of the court and the methods of its law officers; for though the judge realized in whose presence he sat and was quite embarrassed occasion . ally, the prosecuting attorneys were not at all abashed but rather did their very best after their peculiar style, while Hon. Thomas Fitch and Charles H. Hemp- stead, the former U. S. prosecuting attorney, were eloquent and legitimate in their defence of President Young as against his indictment upon the statute in question, for unlawful cohabitation, while they confessed rather than hid the fact that their client's case was that of polygamy. Fitch's argument was a masterly legal effort and a magnificent display of oratory.

Something of the results of this afternoon in court, with Chief Justice McKean and his prosecuting attorneys in the presence of Senator Morton and his friends, will be appreciated by the reading of the following letter from the pen of the Morton visiting party .

"ON THE PACIFIC ROAD, " October 12, 1871.

"At 2 P. M. to-day we bade farewell to the Saints and sinners of the happy valley, and were soon whirled away to Ogden, where our car was attached to the Central Pacific train for San Francisco. The pending and impending troubles in Utah absorb all other considerations concerning this region, and I shall make them the subject of this letter, and try to view the Mormon question, as it is now presented to the public from the standpoint of the various classes immediately interested in its solution.

" The Mormons of the Territory number nearly one hundred thousand souls, and in all that pertains to their material well being are a thriving, prosperous people. They came to Utah twenty-five years ago, when it was Mexican terri- tory, and after a toilsome march, during which they suffered great privations, they pitched upon Salt Lake Valley as their home. To-day the whole valley is a gar- den, and the small band that camped here have become a great people. They have lived at peace with the Indians; have maintained good order among themselves; they are sober, industrious, economical ; they have no gambling hells, no houses of prostitution, no alms houses, no beggars, no vagrants ; and, barring their pe- culiar institution and its deplorable results, are a model people. Their isolation for many years from the society of other peoples, compelled them to adopt the co-operative plan of industry and manufactures, and the fruit of their labors has accumulated in their own hands, until millions of wealth in lands, flocks, cities, villages, manufactures and merchandise are now owned and controlled by them.

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It is quite right for Mormons to feel that they have a right to the peaceful enjoy- ment of these results-achieved as they have been, by their own unaided efforts --- in the face of continued and bitter persecution, and in spite of obstacles that would have daunted a people less courageous, or if you please, less fanatical than they. Recent events have convinced the Mormons that there is a settled purpose on the part of the Federal authorities in Utah to force a collision that will result in their expulsion from their chosen land, and there is a growing feeling of suspi- cion and distrust throughout the Territory, which, if not soon allayed, will most surely lead to the most dreadful consequences. After a full and free conference with the leading Mormons, Federal officers and business men of Salt Lake City, we predict that a dreadful civil war will soon be raging in this fertile region, re- sulting in the loss of thousands of lives, the expenditure of millions of public treasure, and the complete devastation of one of the most beautiful and thriving regions on the continent, unless the administration interferes with the schemes of the petty lords of misrule, who are doing their utmost to bring it about.

" It is unfortunate for the nation that it is in the power of such men as Judge McKean and the deputy district attorneys, Maxwell and Baskin, to precipitate a collision between the Federal authorities and the Mormons, in a contest in which the Government occupies a false and untenable position. If an issue is to be made and settled in the courts between the U. S. authority on the one hand and polyg- amy on the other, concerning the lawfulness of the practice, it is of the utmost importance that it be fairly made and impartially tried, with full preparation for the probable results. We are convinced that the pending prosecutions are con- ceived in folly, conducted in violation of law, and with an utter recklessness as to the grave results that must necessarily ensue. How does the matter stand ? There is a vacancy in the office of United States district attorney for the Terri- tory of Utah. Judge McKean has appointed two lawyers, Maxwell and Baskin, to act as deputies. These deputies boast that they have instigated the prosecution and assume great credit for the disingeneous trickery by which they hope to force a conflict whose consequences they have not the capacity to measure or under- stand. It is much to the credit of President Grant's administration that these deputy prosecutors arrogate to themselves the entire credit of conceiving the dis- reputable trick to which they have resorted to effect their purpose. Let it be un- derstood that the indictments pending are not based on the act of Congress of 1862, defining and providing for the punishment of bigamy, but upon Section 32 of the Territorial laws of Utah.

* The indictment against Brig- ham Young charges him with violating this statute by living with his sixteen wives. By no recognized rule of interpretation can polygamy be punished under this law. The law itself was passed by Mormons who taught and practiced po- lygamy at the time, and it was clearly intended by its framers to punish prostitu- tion and fornication in cases where there was no claim or pretense of marriage. However illegal, the Mormon marriages are de facto marriages, and were not con- tracted in violation of this statute. That they are contrary to the act of Con- gress is clear, and they should be attacked, if attacked at all, by the United States authority under that law. To use the Federal tribunals for the punishment of polygamists, under the Territorial act, is a manifest perversion of the law, if it is

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anything more than a piece of disreputable trickery, conceived and carried on in the interest of a gang of unscrupulous adventurers. If the United States desires to wage war upon Mormon polygamy, let it be done in an open and dignified man- ner, and not in the pettifogging style which has thus far characterized the prose- cutions in Judge Mckean's court in Salt Lake. No good citizen of the United States can have any sympathy with polygamists. It is a doomed institution, and it must disappear from our social system ; but all good people are interested in hav- ing its destruction brought about by methods stern and effective, if need be, but so ordered that the judgment of the civilized world shall approve them.

" I shall endeavor in another letter to speak of the probable and appre- hended results of a speedy trial, conviction and imprisonment of Brigham Young in the pending case .- F. Editorial Correspondence Indianapolis Journal.

Commenting upon the foregoing letter the Silt Lake Herald said :

" We place before our readers the deliberate utterances of Hon. Mr. Fish- back, the social and political friend of U. S. Senator Morton, the leading repub- lican editor of Indiana, the Boswell of that statesman who more potently than any other public man influences the administration at Washington and the policy of the Government. It is folly to say that the opinions expressed by Mr. Fishback are only the opinions of an intelligent observer ; though even this assertion is a heavy blow to those officers whose hatred and zeal outrun justice and discretion. The deliberate utterances of this gentleman are vastly more than this. They sig- nify that however strong may be the determination of the President of the United States and his cabinet to bring real or fancied offenders in Utah to punishment, no partial, unjust, unfair or illegal practices will be encouraged, even to effect that result. We know that President Grant desires to say in his message to Congress five weeks hence, that polygamy is virtually dead, but we know also, that he be- lieves in the good sense of the American people and the power of the Govern. ment, to accomplish legitimate ends without resorting to foul aspersions upon in- dividual character, to false charges unsusceptible of valid proof, or to tricks which are clearly unbecoming in a great government and its officers. We have already seen something of the result of the visit of Senator Morton to this city, in the public sentiment of Sacramento and San Francisco, in each of which places his views were listened to with that attention which the utterances of so able and dis- tinguished a statesman are bound to secure ; and an echo of which has been heard in the columns of the leading papers of the Pacific Coast. We have no serions fears of the result, whenever the facts of the case can be fairly represented and dispassionately weighed ; and we see clearly that the visits of eminent men and women, distinguished in public affairs, in literature and as journalists, are likely to secure from the intelligent reading public such an exercise of judgment as will ¡ rove unfavorable to the arts of vicious, intolerant partizans. The leading papers of the country, of all shades of political sentiment, come laden with criticisms and denunciations of the course now being pursued by officers of the Government here. The sober, second thought of the people will be found opposed to all tricks and sha'ns in the sacred name of Justice."

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CHAPTER LXIV.

PRESIDENT YOUNG RETURNS AND CONFOUNDS HIS ENEMIES. HIS PRESENCE IN COURT. JUDGE MCKEAN REFUSES $500,000 BAIL. £ BRIGHAM A PRISONER. IMPORTANT CORRESPONDENCE BETWEEN THE DISTRICT ATTORNEY AND THE ATTORNEY-GENERAL. SUSPENSION OF CRIMINAL TRIALS.

At half-past two o'clock, Wednesday, January 2nd, 1872, President Brigham Young, accompanied by Messrs. Fitch, Hempstead and others of his counsel, and a host of prominent citizens, entered the court room where Chief Justice Mckean was sitting in chambers to hear an application by President Young's counsel for the admission of their client to bail. When the doors were open the court room was at once filled to overflowing, and a large number of the gentlemen of the bar were in attendance.

Mr. Hempstead addressed the court, stating that the defendant, Brigham Young, sen., who had been jointly indicted with other parties for murder, was now present in the custody of the U. S. marshal, and his counsel appeared to ask for the exercise of that sound discretion which had been invested in the courts of the United States upon an application for the admission of their client to bail. The question as to this discretion had already been fully argued and decided by this court, and bail granted in the case of Daniel H. Wells, Mayor of Salt Lake City.

At the time of issuing the warrant for the arrest of the defendant, he was at a distance of 300 miles from this city ; and in the dead of winter, through the terrible storms and almost impassible roads he has returned here in obedience to the warrant of the court. He is seventy-one years of age ; his health is poor, and a protracted imprisonment would seriously jeopardize his health, if not imperil his life. The object of bail is to secure the attendance of a prisoner. It is customary to grant bail where it is regarded as a sufficient security for the at- tendance of the defendant.

A certificate from the defendant's medical attendant, Dr. Anderson, dated the 2nd day of January, 1872, was read, to the effect that the defendant is over seventy-one years of age and in very feeble health, and that confinement would certainly be very injurious to his health and might prove fatal.

The counsel also called the attention of the court to the pending motion to quash the indictment in the case of Brigham Young, William Kimball and others, which motion was also applicable to the indictment upon which this defendant was now under arrest. A delay in the decision of this motion, or a decision in the affirmative, would subject the defendant to a lengthy imprisonment.

U. S. District Attorney Bates said there was no doubt at all that in the

HISTORY OF SALT LAKE CITY.

United States courts under the old statutes all parties may be admitted to bail. We have seen this course followed in other cases equally important with this one. Aaron Burr and Jefferson Davis were both admitted to bail. As the sole repre- sentative of the Federal Government the district attorney said he asked only that this defendant should be treated as all others are treated, and that his presence should be fully guaranteed at the time appointed for his trial. The circumstance that he is here in obedience to the mandate of the court should be considered, as well as another grave and humilating fact that the government has not within the Territory a jail or other place to confine its prisoners. It may also be remem - bered that he is an old and feeble man, whose health might be injured by a long confinement. He asked the court only to exercise its discretion in the premises, but if he decided to admit the defendant to bail, he should insist that the amount be fixed in the sum of $500,000.

Mr. Fitch said that while the defense would bow to the decision of the court, and were ready to give whatever bail might be demanded, he regarded the amount suggested by the district attorney as unprecedented in American criminal history. The bail of Jefferson Davis for the high crime of treason was only placed at $100,000 by the Chief Justice of the United States, and the counsel for the defense could not let such a suggestion pass without a challenge and objection.

Judge McKean said :

" The Government of the United States has no iail in this city for holding prisoners who are arrested on process issued from the United States courts: the marshal is therefore required to exercise the discretion which the law vests in him. Sometimes such prisoners are kept at Camp Douglas, but the military commander of that post is not obliged to receive them. The defendant now at the bar is re- puted to be the owner of several houses in this city. If he shall choose to put under the control of the marshal some suitable building in which to be detained, it will be for the marshal to decide whether or not to accept it. It is at the op- tion of the defendant to say whether or not he will make such offer, and equally at the option of the marshal to say whether or not he will accept it. In any event, where cr however the defendant be detained, the marshal will look to it that his every comfort be provided for, remembering that the defendant is an old man. I decline to admit the defendant to bail."

The proceedings ended. A large number of persons pressed forward to shake hands with President Young as he retired in charge of the U. S. marshal.

The appearance of President Young in court overwhelmed those gentlemen of the prosecution and the press who had so freely and publicly boasted that Brigham Young was a fugitive from justice, and would never again be visible in Salt Lake City, which he had founded. Here in the chief city of the Mormon Zion Brigham had reached the summit of his glory and power after having successfully accomplished the most wonderful colonizing work of modern times. Here in Salt Lake City he had spent nearly a quarter of a century of the best years of his life directing that matchless band of pioneer State-founders who followed his lead and surrounded by the thousands emigrated by the plans of which he was the chief de- signer, and by whom he was venerated as but few men have been in all the cen- tuties down to his day. Yet U. S. Prosecuting Attorney Baskin had positively

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declared to the court that Brigham Young was a fugitive from justice, that he would never again be seen in Salt Lake City unless brought here by the officers of the law; and upon this presentation of the case the U. S. prosecutor claimed the for- feiture of Brigham's bonds. This view had been repeated with emphasis in the local anti-Mormon papers, sent broadcast through the country in associated press reports and in the correspondence of Oscar G. Sawyer, editor of the Salt Lake Tribune, to the New York Herald, and reproduced in so many newspapers east and west until the public began to settle down to the same views. During the last two months the Mormon citizens had been constantly insulted not only in the court and through the anti-Mormon press by such affirmations, but personally often insulted on the street, and a doggerel song was sung in the city with much anti- Mormon applause, running thus :

" Where now's the Prophet Brigham? Where now's the Prophet Brigham? Down in Kanab ; By and bye we'll go and fetch him, Down in Kanab."

No wonder then that the appearance of Brigham Young in court humiliated his enemies and gave cause of great pride and rejoicing among his personal friends and religious followers. The Salt Lake Herald, elated with the exultant feelings of the occasion, said :

" Yesterday these distinguished persecutors, though false prophets, had the pleasure of gazing upon the countenance of the man about whose movements and motives they had so sagely prophesied. Naturally they took a good look at his countenance. Could this be a sham appearance ? Was it not a counterfeit Brigham come into court to cheat them of their prey ? No, they were too familiar with the calm, kindly and genial face of this venerable man, who had come here in open day to face his persecutors-had come through tempests and torrents and snow-slides, a distance of nearly four hundred miles, to show the little terriers who had been barking at him, that strong in the conviction of justice and right he had faith in the ultimate verdict of the people, and in the protecting care of that prov- idence in whose trust he had never been deceived through a long and most event- ful career.

" Again have the enemies of President Young and of his people been dis- appointed in their fondly cherished expectations, and we believe that they are des- tined to more grievous disappointments in the future. Every fresh discomfiture to them is a triumph to the people whose representative he is. We say this in no captious spirit, and without intention to provoke resentment. We can afford, in view of the reasonable triumphs of the past year to the cause of honesty, justice and equal rights, to be lenient and forbearing. There have been dark days; there may be darker days for us in the future; but through all and above all, the sunlight of truth will shine brightly and the persecuting enemies of a free, brave people, and the false prophets who prophesy evil things concerning us will be utterly dis- comfitted :

" 'For ever does truth come uppermost, And ever is justice done.

In the court, on January 9th, U. S. Attorney Bates, under the advice and di- 29

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rection of the Attorney General of the United States, nominated and appointed James L. High as deputy U. S. attorney.

Mr. Bates then stated that he had, on examination of the circumstances sur - rounding his position and the duties he was expected to perform, discovered that there were no funds provided to pay the fees of jurors or witnesses, nor the contin- gent expenses of court ; a fact of which he had promptly notified the Attorney- General by telegraph. He had also desired the assistance of associate counsel and telegraphed for permission to employ Mr. Baskin in conjunction with General Maxwell, advising the department that it was impossible for him to prepare these cases for trial without such assistance. In answer to a letter of his of December 4th, he had received the following :

"DEPARTMENT OF JUSTICE,

WASHINGTON, December 14th, 1871. " George C. Bates, Esq., U. S. Attorney, Salt Lake City, Utah.

"SIR-I have received your letter of the 4th instant and have called the atten- tion of Senator Cragin to the difficulty in regard to funds ; and I trust Congress will afford some prompt relief.

" Very respectfully, "A. T. AKERMAN, Attorney-General."

A bill was prepared for the purpose and reported to the Senate by Senator Cragin. In reply to the telegram asking the appointment of Mr. Baskin, Mr. Bates received this letter :

" DEPARTMENT OF JUSTICE,

WASHINGTON, December 20th, 1871. "George C. Bates, Esq., U. S. Attorney, Salt Lake City, Utah.

' Your letter of the roth instant is received.

" I have answered by telegraph that you are at liberty to employ Mr. Baskin, and I herewith enclose a commission for him.

" Under the circumstance I do not feel at liberty to employ other additional counsel. The Government ought not to show any unseemly zeal to convict Brigham Young ; and the addition of two lawyers to the regular professional force of the Government in Utah might have that appearance. The propriety of the em- ployment of Mr. Baskin is obvious, he having prepared the cases.

" In answer to your other letter of the same date, I have to say that it seems to me wrong in principle to covenant with regard to bail, while the accused is ab- sconding. When a man submits himself to the law, it is time enough to consider what amenities he may receive under the law. Should Mr. Young be arrested, the question of bail will be altogether a judicial one to be decided by the court upon the principles which would operate in the case of any other accused party.

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History of Salt Lake City, Part 71

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