History of Salt Lake City, Part 73

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

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Mr. Fitch took the floor and delivered his great convention speech, which is by far the most elaborate and weighty review of Utah affairs of that period extant. He said :

" If there be those within or without this chamber, who imagine that the mem- bers of this convention will be content to go through the form of constructing an edifice of State government without hope that such edifice will ever be occupied by a living tenant, they mistake the spirit of an earnest people and the purpose of their representatives.

" The object of this convention will not be accomplished until room shall be found upon our national banner for the star of Deseret ; and the question which confronts us at the threshold of our labors is, will the necessities for a State gov- ernment justify some effort and much sacrifice on the part of the people of Utah ? " An influential Mormon citizen said to me, not long since, upon his return from a trip east : ' I am satisfied that there is no safety for us without a State government, and that we can have no State government without concessions.' He stated the case with mathematical precision. There is no safety for the people of Utah without a State government; for under the present condition of public affairs, their property, their liberties, their very lives, are in constant and increasing jeopardy.

" Let us review the situation. About August, 1870, James B. Mckean ar- rived here as chief justice of the supreme court of Utah Territory, and district judge of the Third Judicial District. From the hour of his arrival he has been the leading, controlling spirit of the existing movement against Mormon institutions. He is not perhaps an immoral man in his private life, and for the purposes of this

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argument it is not necessary to inquire whether or not he is a corrupt man either in private or official transactions, but he certainly is that most dangerous of all public functionaries-a judge with a mission to execute, a judge with a policy to carry out, a judge panoplied with a purpose as in complete steel. Whether or not conscientiously, but with implacable and unswerving determination, he has steadily subordinated his judicial duties and his judicial character to the fulfilment of his mission and the execution of his policy. Motions are held under advise- ment for months, civil business accumulating upon the calendar, great mining cases are referred, or abandoned by disgusted litigants, and still the judge alternates be- tween the business of an examining magistrate and the pleasure of thanking the grand jury for finding indictments. While possessing sufficient knowledge to comply with some of the forms of law, and sufficient personal courage to forward his plans, he is yet destitute of the spirit of impartial jurisprudence. We all know there is a class of minds which after many years of upright and dispassionate con- duct, will, through lust of power, or gain of fame, or other inordinate aim, sud- denly develop some insurgent quality which stops nothing short of morbidness, little short of insanity. It is for the prestige of his past that this man, notwith- standing his remarkable actions here, continues to receive the support of the Fed- eral administration, while with some sincerity in the righteousness of his crusade, he wins for himself the endorsement of thousands of persons who only know that they desire polygamy shall be destroyed, and who do not ask the price or enquire ' how many Athenians are in mourning ?'

" Whether or not this theory be correct respecting the cause, and it is the most charitable of any I can conceive, the result is the same. James B. Mckean is morally and hopelessly deaf to the most common demands of the opponents of his policy, and in any case where a Mormon, or a Mormon sympathizer or a con- servative Gentile be concerned, there may be found rulings unparalleled in all the jurisprudence of England or America.

" Such a man you have among you ; a central sun ; what of his satellites ?

" The mineral deposits of Utah have attracted here a large number of active, restless, adventurous men, and with them have come many who are unscrupulous ; many who are reckless, the hereditary foes of industry, order and law. This class, finding the courts and Federal officers arrayed against the Mormons have, with pleased alacrity, placed themselves on the side of courts and officers. Elements or- dinarily discordant blend together in the same seething caldron. The officers of jus- tice find allies in those men who differently surrounded, would be their foes; the bag- nios and the hells shout hosannas to the courts; the altars of religions are invested with the paraphernalia and the presence of vice; the drunkard espouses the cause of the apostle of temperance; the companion of harlots preaches the beauties of virtue and continence. All believe that license will be granted by the leaders in order to advance their sacred cause, and the result is an immense support from those friends of immorality and architects of disorder, who care nothing for the cause, but everything for the license. Judge Mckean, Governor Woods and the Walker Brothers and others are doubtless pursuing a purpose which they believe in the main to be wise and just, but their following is of a different class. There is a nucleus of reformers and a mass of ruffians, a centre of zealots and a circumfer-

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ence of plunderers. The dram shop interest hopes to escape the Mormon tax of $300 per month, by sustaining a judge who will enjoin a collection of the tax, and the prostitutes persuade their patrons to support judges who will interfere by habeas corpus with any practical enforcement of municipal ordinances.

" Every interest of industry is disastrously affected by this unholy alliance ; every right of the citizen is threatened if not assaulted by the existence of this combination. Your local magistrates are successfully defied, your local laws are disregarded, your municipal ordinances are trampled into the mire, theft and mur- der walk through your streets without detection, drunkards howl their orgies in the shadow of your altars, the glare and tumult of drinking saloons, the glitter of gambling hells, and the painted flaunt of the bawd plying her trade, now vex the repose of streets, which beforetime heard no sound to disturb their quiet except the busy hum of industry, the clatter of trade and the musical tinkle of mountain streams.

" The processes by which this condition of affairs has been brought about, as well as the excuse for invoking these processes, may here be briefly stated :

" In 1856, a great political party declared itself opposed to polygamy as a relic of barbarism ; in 1860, that party achieved power in the nation ; in 1862, an act of Congress was passed, the object of which was to suppress polygamy in Utah. This law was permitted to remain a dead letter on the statute books. The war sup- pressed rebellion, the problems of reconstruction growing out of that war, the proposed impeachment of President Johnson, the various exciting public questions of the day, diverted the minds of legislators and constituencies from the Mormon question ; and not until after President Grant's inauguration did the anti-polyg- amic plank of the national republican platform loom up into national consequence. It was then observed that the anti-polygamic act of Congress of 1862, had never been enforced. The Territorial laws for drawing and empaneling juries provided, as in all other communities, for a selection by lot. Nineteen-twentieths of the persons eligible for jury duty in Utah were Mormons, who naturally declined to indict or convict their neighbors for a practice which was believed by all to be a virtue rather than a crime. The law prescribed one rule, the sentiment of the community where the law existed prescribed another. Similar conditions pre- vented the trial of Jefferson Davis for treason at Richmond ; similar conditions made it impossible to convict a violator of the fugitive slave law in New England.

" The Forty-first Congress was asked to enact a law to meet the exigency and the Cullom bill was framed. The measure provided that the selection of jurors should be given to the United States Marshal, that polygamists and those who believed in polygamy should be excluded from the jury box, that the wife might be witness against the husband, that marriage might be proved in criminal cases by reputation, and that the statute of limitation should not be applied to charges of polygamy. The wisdom and justice of this sweeping measure were seriously questioned by the New York Tribune, and other Republican papers, and by such leading statesmen as Henry L. Dawes, of Massachusetts, and Robert C. Schenck, of Ohio; but the bill passed the House by nearly a party vote, and ifailed to become a law only because the United States Senate did not find time or nclination to consider it during the Forty-first Congress.

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HISTORY OF SALT LAKE CITY.

" After the adjournment of the second session of the Forty-first Congress, James B. McKean was appointed Chief Justice of Utah, and with military promptness he proceeded to establish as rules of law the propositions of the defeated Cullom bill. He decided in the case of Hempstead vs. Snow that the court over which he presided was a United States Court, that it was not a legis- lative, but a constitutional court, and that the Territorial prosecuting attorney was not, even when prosecuting offenders charged with violation of Territorial laws, the proper prosecuting officer of his court, but that the United States district attorney was such. He decided in the case of Patrick 2s. McAllister that the Territorial marshal was not, in any case, the proper executive officer of his court, but that the United States marshal was such in all cases. He decided in another case that the Territorial legislature of Utah had no power under the organic act to prescribe rules for obtaining juries to try any cases in his court, and in pres- cribing rules himself for that purpose, he declined to consult the assessment roll or invoke the usual method of selection by lot, but he ordered an open venire to the United States marshal.

" 'Thus the first proposition of the defeated Cullom bill, that the marshal might pick, I will not say pack, the jury was decreed into existence. A tempo- rary delay in starting the engine of prosecution was caused by a lack of fuel, the comptroller of the treasury declining to audit the bills for the expenses of this court thus elevated to a United States tribunal, and the Territorial officers declin - ing to pay over Territorial funds to persons not authorized by Territorial law to receive them ; but fuel was found somewhere, and the machinery began to move.

" In September, 1871, a grand jury was summoned by the United States mar- shal to attend the Third District Court of Utah, from the counties of Salt Lake, Tooele, Summit, Green River, Morgan, Weber, Box Elder, Cache and Rich, con- taining a population of 60,000 Mormons and 10,000 Gentiles, twenty-three grand jurors and seventeen talesmen were selected and summoned. Of these forty per- sons seven were Mormons and thirty-three were Gentiles. Each of the seven Mor- mons were examined on his voir dire, and to the question of U. S. district attor- ney Baskin, each replied in effect that he was a member of the Church of Latter- day Saints, that he believed that polygamy was a revelation to that church, that in his own case he would obey the revelation rather than the law. When asked the further question whether this belief in the revelation would affect the action of the juror in voting for or against an indictment for polygamy, some jurors replied that it would affect their action, others that it would not. The United States dis- trict attorney stated to the court that he intended to bring a number of accusations of polygamy before the grand jury, and challenged the seven Mormons for bias, Judge McKean sustained the challenge and dismissed; the Latter-day Saints from the box. Thus the second proposition of the Cullom bill was established by the decree of Judge Mckean. The seven Mormons whom the United States marshal had made a show of summoning were ruled off, and 60,000 people in the Third District deprived of the privilege of representation in the jury box.

" It is a fact worthy of notice that this grand jury from which Mormons were excluded because they believed in polygamy, never found a single indict-

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ment for the violation of the act of Congress of 1862, and never, so far as known, sent for a single witness upon, or attempted to consider any accusation for polyg- amy. Indictments for ' lewd and lascivious cohabitation ' under a rusty old Ter- ritorial statute were found by the score ; indictments for murder committed fifteen or twenty years ago were found by the dozen, upon the unaided and un- corroborated testimony of a witness who confessed himself the principal in these murders ; but the threat of ' indictment of polygamy' having fulfilled its mission by furnishing excuse to exclude Mormons from the grand jury was heard no more. " I pass for the present from this grand jury to review the processes by which Judge McKean vitalized the abortive Cullom bill.

"A man named Thomas Hawkins had been indicted under a Territorial statute for the crime of adultery, and in October, 1871, he was tried before Judge McKean and a jury. Two or three Mormons, who chanced to creep on to the marshal's venire were asked if they believed in polygamy ; to which question they replied, yes. They were further asked if they believed a man could be guilty of adultery who committed the act constituting that offense under a claim of plural or polygamous marriage ; the reply was no ; whereupon the district attorney challenged the jurors for bias, and the judge sustained the challenge and directed the jurors to leave the box ; although there was not a line of pleading or record, nor a word of counsel or client by which the judge could judicially conjecture, much less know, that the defendant would set up any polygamous marriage as a defense to the charge of adultery.

" Hawkins was convicted on the sole evidence of his wife, who in despite of the protest of counsel, was permitted by Judge McKean to testify in the case, and thus the third proposition of the defeated Cullom bill, that a wife might testify against her husband was established by decree of the judge. Hawkins was sub- sequently sentenced to pay five hundred dollars fine and be imprisoned for three years-and he is now in the Territorial prison pending an appeal to the supreme court of the Territory. From present appearances he is likely to serve out his term, for his bonds pending appeal have been fixed at the sum of twenty thousand dollars, and his whole property would not suffice to pay his five hundred dollars fine. Judge McKean refused for three months to sign the bill of exceptions for Hawkin's appeal to the Territorial supreme court, on the ground that the bill was too voluminous, that it contained a record of all the proceedings in the case- proceedings reported by an official phonographic reporter appointed by himself. When the supreme court of the Territory met on the fifth of February, Chief Justice McKean presiding, the record of the Hawkins' was not quite ready, be- cause the clerk had not had time to prepare it in the short period that had passed since Judge McKean had signed the bill of exceptions-whereupon the Chief Jus- tice adjourned the supreme court until the third Monday in June next, I will not say to prevent the Hawkin's case being heard and reversed by his associates, although I understand that such is the view Hawkins takes of it. But there Hawkins is probably prejudiced : his recollection of some of the proceedings in his case not having increased his confidence in the impartiality of the Chief Jus- tice. Let me refer to a few of those proceedings. .

" The act of Congress governing the mode of procedure in criminal cases in

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the courts of the United States, gives to the accused ten peremptory challenges to the jury against two accorded by the prosecution, while the Territorial law gov- erning the mode of procedure in criminal cases in the Territorial courts gives the prosecution and the accused six challenges each. The act of Congress referred to bars all prosecutions for non-capital felonies (except forgery ) not instituted within two years from the date of the offense, while the Territorial laws contain no statute of limitations. The Territorial laws provide that in non capital cases the jury which finds the man guilty may prescribe the punishment. The act of Congress is silent upon this subject and of course leaves the power of sentence, where in the absence of statutory regulation it would belong, with the judge.

" As Judge McKean had ruled that his was a United States court, the coun- sel for Hawkins asked the court to give their client the benefit of the ten chal- lenges allowed by act of Congress. Judge Mckean refused, and allowed only the six permitted under the laws of Utah. The defendant's counsel requested an in- struction to the jury that the law of Congress protecting the defendant for acts committed two years before the finding of the indictment. Judge Mckean refused because the Territorial laws prescribed no limit for prosecutions. The counsel asked the judge to allow the jury to fix the punishment as prescribed by the Ter- ritorial laws. He refused that also. He pursued the practice of a United States court when the jury was being selected ; of a Territorial court when the jury were being peremptorily challenged. He pursued the practice of a Territorial court when the act of Congress would have limited the prosecution ; of a United States court when the jury might, under Territorial law, have been more lenient in pre- scribing punishment than the exigencies of a great, burning 'mission' would warrant.

" What authorities were cited ? What precedents invoked ? What chain of reasoning offered to sustain these judicial usurpations ?- none. The section of the statute of Utah under which Hawkins was indicted, and his wife permitted to testify against him, both before the grand and petit jury, reads as follows :

" 'No prosecution for adultery can be commenced but on the complaint of the husband or wife.'

" The statutes of but few States make adultery a felony, and adjudicated cases upon such statutes are rare. In Minnesota, however, the statute on this sub- ject is precisely the same as in Utah, and the supreme court of Minnesota in a case strikingly analogous to the Hawkins case, in the case of State vs. Armstrong, reported in the fourth volume of Minnesota supreme court reports, set aside a similar conviction obtained upon the testimony of the wife.

[Mr. Fitch quoted and applied the opinion.]

" Perhaps I weary the convention with all this, but as the necessity of a State government in Utah arises largely from the character and conditions of the courts of Utah, I have thought best to recite some of the history of judicial proceedings here that all may know the grievances of the people, and that those who sustain the course of Judge Mckean may understand what it is they endorse. Perhaps the legal profession may criticize my action in reviewing before a public assem- blage, the ruling made at a trial in which I participated as counsel. I can reply that the prosecution in these Mormon cases have constantly appealed to the pub-

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lic for support. They tried their cases on the streets, in the newspapers, at pub- lic meetings, by petitions and over the telegraph wires by means of their leading adviser, the Salt Lake agent of the associated press, and I do but follow their ex- ample in presenting the matter to this convention. Let those who sustain Judge McKean by petition and mass meeting without knowing whether he is right or wrong, take heed less the hour arrive when they shall feel the need of courts where the voice of passion and public clamor cannot enter, and where those rules of law which the wisdom of ages has prescribed will not for any social or political exi- gency be set aside.

" Thus it will be seen that the four important provisions of the discarded Cullom bill, namely, no choice of jurors except by a United States marshal, no Mormon to serve on juries, the abrogation of the common law rule that a wife cannot testify for or against her husband, and the new doctrine that marriage in criminal cases can be proved by admission of the defendant, are all in successful operation. That legislation to meet a local difficulty in the way of enforcing the laws, which the United States did not deem it wise or expedient to enact, has been decreed and established by Jas. B. McKean. The course of procedure which Chief Justice Salmon P. Chase tacitly refused to pursue, even to meet a great popular de- mand for the punishment of Jefferson Davis, the Chief Justice of Utah has pursued to comply with a small popular demand for the punishment of a Mormon poly- gamist. The judge has made those bold innovations upon precedent, the contem- plation of which compelled the pause of the law-making power of a great nation.

. Who will doubt that whenever the exigencies arise the same judge will overturn another common law rule, and establish another proposition of the Cullom bill by allo wing marriage to be proved in prosecutions for polygamy by evidence of gen- eral reputation? Who will doubt that any ruling will be made that is necessary to carry out the crusade ? And what unprejudiced citizen but will regard with appre- hension the extension of this practice of judicial legislation ? If it should ever each beyond Utah and be adopted by the judges of our State and National courts of last resort, either a revolution would be induced, or a people who had lost their liberties would have occasion to remember John Randolph's epigram, that 'the book of Judges comes before the book of Kings.'

" Let me now recall some incidents in the history of the grand jury selected under the patent process to which I have referred. That grand jury found a num- ber of indictments, not for any alleged violation of the anti-polygamic act of Con- g ress, not for adultery as in the Hawkins case upon the evidence of the wife; but upon somebody's evidence-let us hope that somebody was not public rumor- they indicted a number of prominent Mormons for the crime of ' lewd and lasciv- iou; cohabitation.' The law under which these indictments were found is a statute of Utah Territory and reads as follows :

" If any man or woman not being married to each other, lewdly and lasciv- iously associate and cohabit together, etc., every such person so offending shall be punished by imprisonment not exceeding ten years, etc.

" But one State in the Union has a statute similar to this-the State of Mas- sachusetts, and the Supreme Judicial Court of that State in the case of the Com-

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monwealth as, Catlin, ist Massachusetts Reports, page 8, decided that evidence of secret cohabitation cannot in any degree support an indictment for this offense.'

" Who supposes that the defendant in any of the cases of this character, now pending in the Third District Court, will be proved to have committed any public act of cohabitation ? And who does not conjecture that a petit jury, selected as the grand jury was, and instructed as they doubtless will be, will probably find verdicts of guilty upon evidence of secret cohabitation ?

" Let me return once more to the record history of the Third Judicial Dis trict Court.

"Among the indictments for lascivious cohabitation is one charging the crime against Brigham Young, and charging it as having been committed with sixteen different persons, at sixteen different times and places, ranging over a period of nineteen years. The counsel for the defendant asked the court to quash this in- dictment of multifariousness, or else compel the district attorney to elect upon which count he would proceed. Let it be observed that there was nothing in this motion out of the regular course of criminal cases. It was made upon legal grounds only, and supported by legal authorities. It was nowhere suggested or argued that 'lascivious cohabitation' was not a crime, a felony under the laws of Utah. It was nowhere suggested or argued that evidence of a polygamous marriage would be offered, or if offered could be received as a defense of the accusation. The motion to quash or compel an election was made before plea, and the judge in passing upon that motion had no right to do anything except to grant or refuse it, or except, and to give his legal reasons for granting or refusing it.

" What did he do? He went outside of the record ; he assumed that the defendant was guilty before trial. He first denied the motion, giving his legal reasons therefor, and then he used the following remarkable language :

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History of Salt Lake City, Part 73

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