USA > Utah > Salt Lake County > Salt Lake > History of Salt Lake City > Part 74
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[He quotes Mckean's opinion. ]
" What wonder then that the New York Law Journal, one of the leading legal periodicals of the country, thus criticized this remarkable language of Judge James B. Mckean :
"' His decisions we do not question, but the language accompanying those decisions has been so intemperate and partial as to remind one of those ruder ages when the bench was but a focus where were gathered and reflected the passions of the people.'
"What wonder then that the counsel for the defendant felt compelled to no- tice the unprecedented action of Mckean by filing the next day the following protest :
" We the undersigned, of coinsel for the defendant in the above entitled cause, respectfully except to the following language of your honor in your opinion to quash the indictment herein.
[He quotes from the opinion. ]
" The indictment in this case charges the defendant with 'lascivious cohabita- tion' and not with polygamy or treason. The statement of your honor that a system of polygamic theocracy is on trial in this case in the person of Brigham Young coupled with your invitation to us to prove by authority that the acts charged in the indictments are not crimes, is most prejudicial to a fair trial of the
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defendant, in that it assumes that the defendant has been guilty of the acts charged in the indictment, and that law and not the alleged fact will be on trial.
"No motion has been made to quash the indictment in this case on the ground that acts charged therein are not crimes, nor has such a proposition been advanced on argument by any of defendant's counsel herein. We submit that no political and social condition of the country can relieve the prosecution of the task of proving one or more of the acts alleged in the indictment, and that unless and until such proof is made, the guilt of the defendant ought not to be assumed or even conjectured by the judge before whom he is to be tried.
" ' If any presumption is to be indulged in, it is that the defendant is innocent of the charges preferred against him, and that he will accordingly plead 'not guilty ' to the indictment, and that presumption remains until the defendant elects to plead 'guilty' or a special plea of justification, which latter have not been sug- gested by either defendant or his counsel. In so pleading 'not guilty,' the defen- dant will not say the acts charged in the indictment are not crimes, but that he is not guilty of the acts charged in the indictment.
""' Then there will be a question of fact for a jury, and we submit that in the determination of that question the language of your honor herein referred to can- not but tend to the prejudice of the defendant, and we therefore except to the same.
""' FITCH & MANN, HEMPSTEAD & KIRKPATRICK, SNOW & HOGE, HOSEA STOUT, A. MINER, LE GRAND YOUNG.'
" Let not the filing of this protest be criticized an an unusual proceeding. If it be unusual so was the occasion which elicited it. What right had Judge McKean to thus expose his bias to the world and bring the administration of jus- tice into contempt. Suppose that in the case of Sickles, indicted for killing Keys, the seducer of his wife, a motion had been made to quash the indictment for some technical defect, and in refusing the motion to quash, the judge presiding had said : Let all concerned keep steadily in mind that while the case at bar is called ' The People of the District of Columbia against Daniel E. Sickles, its other and real title is the peace of society against red-handed murder. The government of Washington City finds in its midst a social code claiming to come from God, a code which asserts the right of a husband to vindicate his honor by bloodshed. The code arrays itself against the laws. A system is on trial in the person of Daniel E. Sickles. The question is not is the defendant guilty or innocent of the crime charged, but it is shall men be permitted to walk down Pennsylvania avenue on Sunday evenings, and murder other men who may have disturbed their do- mestic relations.
" A judge who should pursue such a course elsewhere would be apt to lose his official head, or the opportunity of trying the defendant thus passionately as- sailed from the bench. I do not believe there is a fair-minded judge in the country outside of Utah, who if he had been betrayed in such a case into the delivery of such language, would afterwards consent to sit as judge upon the trial of a defen- dant thus prejudiced. I do not believe there is another community in the country that would not with unanimous voice demand that a judge who had so exhibited his bias should retire during the trial of the defendant in such case.
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" And yet I venture to predict that Judge James B. Mckean will refuse a change of venue, refuse a change of judges, and insist upon occupying the bench upon the trial of Brigham Young; and I predict further that his course in that respect, will be sustained by hundreds in Utah, who are only anxious that Brigham Young, whether innocent or guilty, shall be convicted of something or other. It will be sustained also by that portion of the newspaper press of Utah which has constantly since the inauguration of these prosecutions, presented the disgusting spectacle of calling for the conviction and punishment of men accused of crime, prej idging their cases, denouncing all who defended them, and accusing of cor- ruption those who declined to bend the high duties of officers of the Governmeet to the dirty work of milicious injustice. It will be sustained by the editors who have bitterly abused the United States marshal for according to persons in con - finement those comforts which are allowed to all prisoners before trial who are willing to undergo the expense. It will be sustained by those newspapers whose conductors have found words of encouragement and applause for every insult or indignity or oppression that has been leveled against the Mormons.
" But I am not through with the acts of Federal judges in Utah. The pro- bate courts which for twenty years have exercised jurisdiction in a certain class of cases, have been swept into nothingness by the supreme court of the Territory, throwing property rights into litigation, and making invalid and worthless hun - dreds of divorces, upon the faith of which other marriage relations had been con- tracted. A liquor dealer whose stock was destroyed for selling without license, in violation of a city ordinance, sued for damages the Territorial marshal and his deputies who executed the warrant and the justice who issued it, and obtained from a selected jury, a verdict of $57,000 ; $19,000 for the value of the liquor destroyed, and $38,000 as punishment for those who acted at least under the color of authority. The son of one of the justices of the Territorial supreme court-a young man whose zeal ontran his discretion as a challenger at the polls on election diy-was locked up for a few hours for such disorderly conduct, and he has brought an action against the city officers who detained him, to recover $25,000 damages. Several persons committed by local migistrates to answer charges of felony, have s'led out writs of habeas corpus before a Federal judge and been discharged from custody, on the ground that the Mormon judge had no jurisdiction-the universal rule of law that the acts of a de facto officer cannot thus be collaterally attacked being coolly ignored.
" The biser elements of society gaining courage and support from those de- cisions, now commit depredations on the public peace and on private property with impunity, until within a year Salt Lake, from one of the best, has almost be- come one of the worst governed cities on the continent.
"I turn again from the proceedings of the court to the proceedings of the grand jury it impaneled.
" In the guard house at Camp Douglas, associated with felons, and within the walls of the city jail, are four men of families, four kind, honest, worthy, harmless men, who are held in close confinement upon the uncorroborated evi- dence of a self-confessed perjurer. Innocent men over whom the shadow of the scaffold impends : while the grand jury which indicted them refused to consider,
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refused to listen even to evidence of the perjury of the man upon whose uncor- roborated testimony the indictment was found. Before Judge Mckean, as mag- istrate examining persons charged with the murder of J. King Robinson, one Charles W. Baker swore that he recognized Blythe and Toms as the two men with muffled faces who ran from the scene of homicide in question upon the night of October 22, 1866. After giving this evidence, Baker, struck with remorse, or failing to receive his reward, or for both or other reasons, made the following affidavit :
"' ' Territory of Utah, Salt Lake County-ss.
" ' Be it remembered that on the 3rd day of January, 1872, personally ap- peared Charles W. Baker who was by me sworn in due form of law, and who ou his oath, did say that he is the identical Charles W. Baker who was a witness in an examination before the honorable James B. McKean, Chief Justice of the Su- preme Court of the Territory of Utah, commencing on the 14th day of Decem- ber and terminating on the 22nd day of December, 1871, at Salt Lake City ; wherein John L. Blythe, James Toms, Alexander Burt, Brigham Y. Hampton, were charged with the murder of J. King Robinson, at Salt Lake City, in the County of Salt Lake, and Territory of Utah, on the 22nd day of October, 1866.
"' He further says the testimony which he then, on said examination, gave was wholly untrue and false. He further said he was hired to give said testimony by S. Gilson. That it was agreed between him and the said S. Gilson and others.
'' That he was to receive the sum of five-hundred dollars, no matter what might be the event of the proceedings, and one thousand dollars for each person that was or might be convicted.
"'' That during the time he was engaged in said testimony and detained, his board was paid by said Gilson and others, at the Revere House, in said city.
""' He further says that he had a plat of the grounds and of the street in the city of Salt Lake near to the place where the murder was committed, fur- nished by S. Gilson.
" ' Which plat, before he gave evidence, was by him carefully studied, so that he might understand it.
" ' He further says that since he so gave his testimony he has carefully reflected on the enormity of the crime he has committed and is aiding in carrying out, and he has concluded to make amends, so far as it is now in his power.
" ' He therefore voluntarily now makes this statement, upon his oath.
"' He further says that on or about the 16th day of December, 1871, he had a conversation with Thomas Butterwood, who then informed this affiant that he was hired to give his testimony, in the above named case, and that his testimony was not true.
" ' (Signed) C. W. BAKER. "'Subscribed and sworn to before me this third day of January, A. D. 1872.
""' JOHN T. CAINE, Notary Public.'
" After making this affidavit, somebody persuaded Baker to go before the grand jury and repeat the false statement he had made before the examining mag- istrate. While Baker was giving his testimony the grand jury had in their pos- session the affidavit I have just read, and yet, will it be believed, they refused to
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consider the affidavit ; they refused, although requested to send for the three wit- nesses by whom the fact of Baker's voluntary signing of and swearing to it could have been proven ; they refused to even question Baker about it, or to ask him to explain it, while upon his testimony alone they indicted Blythe and Toms. There was no evidence so base or worthless but was sufficient to indict a Mormon upon ; there was no evidence sufficiently damning to indict a man who would swear against Mormons.
From the closed doors of this grand inquest the counsel for Blythe and Toms turned to Judge McKean. Upon a proper legal affidavit they asked him to have Baker brought before him for examination upon a charge of perjury ; he refused to issue a warrant, or make any examination, on the ground that the grand jury had had the subject under consideration. Baker was then arrested and taken before a Mormon justice. The lawyer who acted as deputy district attorney on the ex- amination of Blythe and Toms appeared as Biker's counsel, and waived an exami- nation, thereby admitting that there was probable cause to believe Baker guilty of perjury, and Baker was committed to jail, where he now is in default of $3,000 bail. The usual practice of habeas corpus to procure his release has not been resorted to, perhaps because unpleasant facts might thereby be made public, and his confinement will not be lengthy, for he will probably be discharged as soon as the grand jury can again get together and officially ignore the charge.
" I will not pursue this dreary record further. A volume of details of acts of injustice and tyranny might be compiled from the official records, but one more instance will suffice.
" Brigham Young, an American citizen of character, of wealth, of enterprise; an old man who justly possesses the love and confidence of his people and the re- spect of those who know and comprehend him, is to day a prisoner in his own house in charge of an officer. Judge Mckean refused to admit him to bail, although the prisoner is ready to give any sum demanded, and the Attorney- General of the United States has requested that bail should be taken. There is nothing but the lenity of the United States marshal and the caprice of his prose- cutors between the prisoner and the cell of a common guard house. If he takes an airing in his carriage accompanied by the officer who has him in custody, a howl goes up from those newspaper organs of the prosecution, who lustily call for a tin plate, and irons, and prison fare for him ; and all this upon the uncorroborated oath of one of the most remarkable scoundrels that any age has produced ; a man known to infamy as William Hickman, a human butcher, by the side of whom all malefactors of history are angels ; a creature who, according to his own published statements, is a camp follower without enthusiasm, a bravo without passion, a mur- derer without motive, an assassin without hatred.
" Who shall say that no man will ever be convicted by an American jury upon the testimony of such a witness? That which a peculiarly constituted grand jury commenced, a peculiarly constituted petit jury may continue, and a peculiarly constituted court complete. The end may be and doubtless will be, the logical sequence of the beginning. One year ago no man would have predicted such a beginning, and who shall say the tide will turn this side the grave? Who shall prophesy the end ?
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" I say deliberately, that with the history of the past behind me, with the signs of the present before me, with the pervading feeling in the minds of those from whom alone juries will be taken, with the declared opinions of the judge as recorded ; I say with sorrow and humiliation that the Mormon charged with crime who now walks into the courts of his country, goes not to his deliverance but to his doom, that the Mormon who in a civil action seeks his rights in the courts of his country goes not to his redress but his spoliation.
" And there is no prospect of relief except through a State government. It is true that the lower house of Congress his passed a bill to allow appeals to the Supreme Court of the United States in criminal cases from the Territories, but it is not probable that this bill will pass the Senate. The declared policy of the Sen- ate, and especially of its judiciary committee for some years past, has been adverse to such a law.
"The present grand jury has found six indictments for murder and seven indict- ments for 'lascivious cohabitation.' The defendants in these cases include Brigham Young, Joseph A. Yonng, Daniel H. Wells, Geo. Q. Cannon, Hyrum B. Clawson, Hosea Stout, William H. Kimball and others less generally known."
[The speaker next briefly reviewed the history of the drivings of the Mor- mons and the Utah war, which had produced a Hickman and a John D. Lee, and climaxed this line of his argument thus : ]
" The objection to a State government, an objection urged by a handful of people and an irresponsible guerrilla press, that in case Utah is admitted the Mor- mons will control her politics and elect her officers and representatives, is an ob- jection to which the Congress of the United States will, in my judgment, accord no weight whatever.
" That body will, I venture to predict, see no good reason why the Mormons who constitute nine-tenths of the community should not control public affairs here, and once satisfied the social problem is in the way of a peaceful and just solution, there will I think be a disposition to give Utah the privilege of self-government.
" The question of State government or no State government for the people of Utah, is simply a question of concession on the part of the people of Utah. I say a question of concession. I doubt indeed if it be longer than that. The uni- versal voice of a democratic-republican nation of forty millions of people seems to be consolidated into a demand with respect to Utah, a demand which may per- haps be the offspring of prejudiced opinion, but if so, it is an opinion which will not be enlightened and which cannot be disregarded or overruled. The demand is that the future marriage laws, and marriage relations of Utah be placed in con- sonance with the rest of the Republic. The demand is that polygamous or plural marriages shall cease. Accede to this demand and you may have a State govern- ment, with condonation of the past, and secure exemption from persecution for the future. Deny it and you will have neither a State government nor cessation of persecutions. The war is over, secession is dead, slavery is dead, and in the absence of subjects of greater importance, Utah and her institutions will be the shuttlecock of Amercan politics to be bruised and beaten by the battledoors of party for the next decade, unless she no grasp her opportunity and gain peace by gaining power.
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" In accordance with a public promise, made when nominated to this con- vention, I stand here to day to advocate the surrender of polygamy. It may be that my utterances in this behalf will take from me the friendship and support of many good men and women ; if so I must even pay the penalty. It is easier to swim with the current than to seek to stem it, and perhaps it is wiser, but whether or no it is policy I have seldom been able to practice. I have not permitted myself to be disturbed by the titles of 'Jack Mormon,' 'Apostate Gentile,' ' Saint Fitch,' and 'Apostle Fitch,' which have been so freely bestowed upon me during the last ten months by men whose small souls were incapable of comprehending that it was possible to pursue a great purpose by a liberal and comprehensive policy. That I am a friend of the Mormon people, wishing their welfare and happiness, and willing to do all in my power to advance that end, I have often publicly avowed by word and deed, and if my course in this respect shall have inclined this assemblage to-day to give more weight to my utterances than would have been otherwise accorded to them-then I am more than compensated for being often triduced and steadily misunderstood by many who in times past honored me with their confidence and support. In another forum than this it was my fortune two years ago to stand up almost alone to ask the representatives of a great nation to be just towards an honest, earnest, calumniated people, and perhaps I may stand alone to-day in asking the representatives of that same people to be just to them- selves.
" I am not here to attack polygamy from a theological, a moral, or a physical -but from a political standpoint. Certainly I do not propose to question the pire motives or the honesty of those who believe in and practice it. I am in- ( lined to agree with Montesquieu and Buckle that it is an affair of latitude, and climate, and race, and on these grounds alone its existence among a Saxon people, living in the North Temperate zone, is a climatic anomaly. It did not grow out of any structural, or race, or social, or climatic necessities, and if it be, as as- serted, the offspring of revelation here, I can only say that it needed a revelation to start it. That it has scriptural patriarchal origin and example is probably true, but that was in another age than ours, and in a different land. If Abraham had lived on the line of the overland road in the afternoon of the nineteenth century ; if Isaac had been surrounded by forty million monogamous Yankees ; if Jacob had associated with miners and been jostled by speculators, there would, I apprehend, have been a different order of social life in Palestine. The Mormon doctrine may be the true theology, and the writings of Joseph Smith the most direct of revelations. The practice of polygamy may be a safeguard against the vice of unlicensed indulgence, and the social life of Utah the most sanitary of social reforms. All the advantages, claimed for this system may be actual, but nevertheless the fact exists that polygamy is an anomally in this Republic, existing hitherto by the sufferance of a people who now declare that it shall exist no longer.
" Do you doubt this decision on their part? The evidences are all about you. Here is a people who expended thousands of millions of treasure and inyriads of life to establish the freedom of the black race from oppression, and who yet regard with indifference if not with complacency the assault which has
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been made upon the rights and liberties of American citizens in Utah, because the object of those assaults upholds a hateful doctrine. Here is a people ordi- narily jealous of the aggressions of rulers and officials, who yet endorse acts of despotism and applaud assaults upon law and constitution because such assaults are made for the destruction of polygamy.
" What if judges should be changed, or policies altered ? It would bring but temporary relief, for behind all, impelling all, contriving all, demanding all, en . forcing all, there dwells the unconquerable, all-pervading idea of the American people that polygamy must be extinguished. On this one thing all parties, all creeds, and all philosophies are combined. The press calls for it, the pulpit thun- ders for it, the politicians rage for it, the people insist upon it. You may delay the issue but you cannot evade it. Your antagonist is hydra-headed and hundred armed. Whether by bigoted judges, by packed juries, by partizan officers, by puritan missionaries, by iron limbed laws, by armies from abroad or by foes and defections at home, the assault is continuous and unrelenting. Your enemies are ubiquitous. Your friends-ah ! it is your friends who advise you constantly to baffle your enemies and resign the practice of this one feature of your faith. The history of all similar movements warns you ; the violatedlaws of latitude confront you ; your children unconsciously plot against you, for, while polygamy is with you the result of religious conviction, with them it is but the result of religious education, and an inoculated doctrine, like an inoculated disease, is never very violent or very enduring.
" Can this people hope to retain polygamy against such influences and such antagonism? Some tell me that they trust in God to uphold them in a struggle to keep polygamy. Others would doubtless say they trust in God to uphold them in the struggle to banish polygamy ; and others that there can in the nature of things be no assurance that the Almighty will interest himself in the matter, or espouse either side. The early Christians trusted in God when the Roman emperors gave them to the wild beasts. The Huguenots trusted in God when the assassins of St. Bartholomew's Eve made the gutters of Paris reek with their blood. So trusted the Waldenses when their peaceful valleys were given to rapine ; so trusted the victims whose despairing faces were lit by the glare of Spanish auto da fes ; so trusted the martyrs whose fagot fires gleam down the aisles of history . so trusted the Puri. tans when driven out upon the stormy Atlantic ; so trusted the Presbyterians when the Puritans persecuted them ; so trusted the Quakers when the Presbyterians ex pelled them; so trusted the Arcadians when driven from their homes ; so trusted the myriads who in all ages have been sacrificed to the Moloch of religious intol- erance. Who shall say when or in what cases or in what way the ruler of the Uni. verse will interfere? " Render unto Cæsar the things that are Cæsar's and to God the things that are God's." A belief in polygamy is a matter between the citizen and his God ; the practice of polygamy is a matter between the citizen and his country. If you think the laws of God call upon you to believe in it-then obey them unmolested -- but the laws of your country call upon you not to practice it, so obey them-and be unmoested. If for his own purposes the Almighty did not see fit to interfere by special and miraculous providences to protect those who re- fused to recant their professions, is it probable that he will so interfere to sustain
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