History of Utah, Part 65

Author: Whitney, Orson Ferguson
Publication date: 1892
Publisher: Salt Lake City, Cannon
Number of Pages: 1026

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I will say to you, Gentlemen of the Grand Jury, that from what I learn, it has been some time since a court, having judicial cognizance in your district, was held. No person has been brought to punishment for some two years; and from what I have learned I am satisfied that crime after crime has been committed.

In consequence of the Legislature not having provided proper means, there is not that aid given that is desired to enable the judiciary to prosecute its duties ; but I will say that the Legislature, in my opinion, have legislated to prevent the judiciary from bringing such offenders to justice.

They have provided the Probate Courts with criminal jurisdiction, and it would seem that the whole machinery was made so that they should be brought before that court and tried, and the fact that there is no additional legislation to provide for bringing them before this court, proves that it was done to prevent.

The Judge then proceeded to find fault with the Deseret News for indulging in certain strictures on the Federal courts, and with ex-Governor Young for an alleged similar cause. Finally he came to the Mountain Meadows massacre and the Potter and Parrish affair, also mentioning the murder of one Henry Fobbs at Pondtown, and the killing of Henry Jones and his mother at Payson." He then said :

To allow these things to pass over gives a color as if they were done by authority. The very fact of such a crime as that of the Mountain Meadows shows that there was some person high in the estimation of the people, and it was done by that authority; and this case of the Parrishes shows the same, and unless you do your duty, such will be the view that will be taken of it.

You can know no law but the laws of the United States and the laws you have here. No person can commit crimes and say they are authorized by higher authorities, and if they have any such notions they will have to dispel them.

I saw something said in that paper of some higher law. It is perhaps not proper to mention that, but such teachings will have their influence upon the public mind.

* Fobbs was said to have been killed by Indians while passing through the Territory. Jones and his mother were guilty of incest and were shot by an enraged mob of citizens, who pulled down the house in which they dwelt. Both events took place in 1857.

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While Judge Cradlebaugh was delivering his charge to the grand jury, a detachment of infantry from Camp Floyd, numbering about a hundred men, commanded by Captain Heth, entered and encamped without permission upon the grounds adjoining the building-the Provo Seminary-which was being used temporarily as a court house. These grounds, with the Seminary, belonged to the city. While the soldiers invested the outside premises, the officers took up their quarters in the lower part of the building. Amazed and alarmed at this high-handed proceeding, which was looked upon as an attempt to intimidate jurors, witnesses and other persons attending court, the citizens of Provo at once filed indignant protests against the presence of the troops, and petitioned the Mayor and City Council to order their removal. Thereupon the Mayor, B. K. Bullock, in behalf of the council, addressed a memorial to Judge Cradlebaugh setting forth the facts stated and respectfully praying him to cause the military force to be removed beyond the limits of the municipality.

To this memorial the Judge replied that the temporary location of the troops in the city was a movement well considered before it was determined upon; that they were there at his request, having been "kindly furnished" by the commanding general at Camp Floyd, and that their presence was a matter of necessity, to secure prisoners who were to be tried before the court; there being no jail in which to confine them. His Honor stated in the course of his com- munication that the soldiers were as quiet and orderly a set of men as he ever saw. "As to your remark about intimidation," said the Judge to the Mayor, "allow me to say that good American citizens have no cause to fear American troops."

Mayor Bullock and the City Council immediately rejoined, informing Judge Cradlebaugh that he was mistaken in asserting that there was no jail in Provo; that they had a place prepared for such purposes, and were both willing and able, as were the authorities of the County, to provide abundantly for the security and necessities of all prisoners. They also informed him that

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through the drunkenness and supercilious conduct of some of his "quiet and orderly soldiers" several unpleasant circumstances had already occurred between them and the citizens. Against the needless and degrading use of the army as "a walking calaboose" and the superseding of the civil by the military power, the city authorities again protested, and renewed their request for the removal of the troops. All Utah County was now aroused and petitions and protests of a similar character began pouring in from every side. Judge Cradlebaugh paid no attention to them whatever, but kept the court house surrounded by soldiers while he awaited the desired action of the grand jury, to wit: the indictment of the Mormon leaders for the crimes referred to in his extraordinary address. More troops soon appeared upon the scene. Eight companies of infantry, one of artillery and one of cavalry, under Major Paul, followed Heth's command from Camp Floyd, and were stationed within sight of the Provo court house.

Public excitement and indignation increased correspondingly, and the citizens of Provo, and not only they, but the people of the Territory at large, now appealed to Governor Cumming against this flagrant infringement of their liberties. That appeal was not in vain. The Governor, not being in sympathy with the course pursued by the Federal Judges, and recognizing the rightfulness of the people's cause, promptly requested General Johnston to order the troops removed. The General, however, who was not only in sympathy, but in collusion with the Judges, refused to comply, holding himself obligated by the instructions of the War Department to his predecessor, General Harney, to obey the summons, not only of the Governor but of the Judges, and even of the United States Marshal, for troops to aid them in the performance of their duties. In this view General Johnston was of course sustained by the Judges. Doubtless his antipathy to Governor Cumming had something to do with his refusal to honor the request. But the Governor, who was quite a positive character, and knew his own rights as well as those

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of the people, did not propose to be trifled with. He forthwith issued the following proclamation :

Whereas, one company of the U. S. Infantry, under the command of Captain Heth, is now stationed around the Court House at Provo, where the Hon. John Cradlebaugh is now holding court, and eight additional companies of infantry, one of artillery, and one of cavalry, under the command of Major Paul, are stationed within sight of the Court House ; and,

Whereas, the presence of soldiers has a tendency, not only to terrify the inhabitants and disturb the peace of the Territory, but also to subvert the ends of justice, by causing the intimidation of witnesses and jurors; and,

Whereas, this movement of troops has been made without consultation with me, and, as I believe, is in opposition to both the letter and spirit of my instructions; and,

Whereas, Gen'l. Johnston, commander of the military department of Utah, has refused my request that he would issue the necessary orders for the removal of the above mentioned troops :

Now, therefore, I ALFRED CUMMING, Governor of the Territory of Utah, do hereby publish this my solemn protest against this present military movement, and also against all movements of troops incompatible with the letter and spirit of the annexed extract from the instructions received by me from government for my guidance while Governor of the Territory of Utah.

In testimony whereof, I have hereunto set my hand and caused the seal of the Territory to be affixed. Done at Great Salt Lake City, this twenth-seventh day of March, A. D. eighteen hundred and fifty- L. S. nine, and of the Independence of the United States the Eighty- third.

JOHN HARTNETT, Secretary of State.

By the Governor, ALFRED CUMMING.

The following is the "extract" referred to in the foregoing proclamation :

It is your duty to take care that the laws are faithfully executed, and to maintain the peace and good order of the Territory, and also to support by your power and authority the civil officers in the performance of their duties. If these officers, when thus engaged, are forcibly opposed, or have just reason to expect opposition, they have a right to call such portions of the posse comitatus to their aid as they may deem necessary. If circum- stances should lead you to believe that the ordinary force at the disposal of such officers will be insufficient to overcome any resistance that may be reasonably anticipated. then you are authorized to call for such number of the troops as the occasion may require, who will act as a posse comitatus, and while thus employed, they will be under the direction of the proper civil officer, and act in conformity with the instructions you may give as the Chief Executive Magistrate of the Territory.

46-VOL. 1.

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About the same time Judges Sinclair and Cradlebaugh-Judge Eckels seems to have been absent from the scene-addressed a joint letter to the United States Attorney-General in relation to the matter at issue. To the answer of that high functionary, which fully sustained Governor Cumming, and figuratively cuffed the ears of his opponents, reference will be made a little later.

Judge Cradlebaugh, without waiting for the grand jury to present the indictments that he desired, and doubtless despairing of their intention so to do, began issuing bench warrants for the apprehension of certain persons suspected of complicity in the Springville murders. These warrants were served by the U. S. Marshal, accompanied by a squad of soldiers. Several men were arrested, among them some Mormon witnesses subpænaed by the grand jury, and handed over to the keeping of the military. There were also a number of Indians and a few Gentiles in custody.

After waiting in vain two weeks for the grand jury to gratify him, Judge Cradlebaugh became angry, and summoning the members of that body before him, he discharged them, at the same time dismissing the prisoners then in custody and closing his court. He entered upon the docket these words: "The whole community presents a united and organized opposition to the administration of justice." In his final address to the grand jury, His Honor wrathfully said :

If it is expected that this court is to be used by this community as a means of protecting it against the pecadillos of Gentiles and Indians; unless this community will punish its own murderers, such expectation will not be realized. It will be used for no such purpose.

When this people come to their reason and manifest a disposition to punish their own high offenders, it will then be time to enforce the law also for their protection. If this court cannot bring you to a proper sense of your duty, it can at least turn the savages in custody loose upon you.

In summing up the evidence in the Springville cases, the Judge had thus expressed himself:

Men are murdered here. Coolly, deliberately, premeditatedly murdered-their murder is deliberated and determined upon by Church council meetings and that, too, for

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no other reason than that they had apostatized from your Church and were striving to leave the Territory. You are the tools, the dupes, the instruments of a tyrannical Church despotism. The heads of your Church order and direct you. You are taught to obey their orders and commit these horrid murders. Deprived of your liberty, you have lost your manhood, and become the willing instruments of bad men.

The grand jury framed a reply, remonstrating against these insults and protesting against their untimely and dishonorable discharge. They stated that they were surrounded during their deliberations by a detachment of the army, and that army officers were quartered within hearing of the evidence of witnesses who were being examined in the jury-room; that they presented indictments for offenses against the laws of the United States, which indictments had been treated with contempt and the prisoners indicted liberated without trial; that witnesses subpoenaed by the grand jury had been treacherously arrested and the jury deprived of their evidence; but that notwithstanding they were thus trammeled by the court, they had honored their oath and were endeavoring to faithfully discharge their duties when they were dismissed by His Honor with a slanderous and insulting harangue .*

Soon after the closing of the court, the troops investing Provo were withdrawn. And so ended Judge Cradlebaugh's vain attempt- could it be otherwise than vain ?- to saddle upon the Mormon Church, upon an entire community, crimes committed by a few individuals, for whose conduct that. Church, that community, could not justly or reasonably be held responsible.

But the game was not yet played out. Another act of the drama remained: an act that came very near provoking a serious conflict, with General Johnston and the troops at Camp Floyd on one side, and Governor Cumming and the Utah militia on the other.

* The members of the grand jury were: John Riggs (foreman), James Pace, William Meeks, Isaac Morley, Jr., Richard Sessions, D. D. McArthur, A. G. Conover, Jolın Mercer, George W. Bean, Jesse McCauslin, John W. Turner, John Sessions, M. C. Kinsman, A. P. Dowdle, Martin H. Peck, James Smith, Lorenzo Johnson, William A. Follett, N. T. Guyman, Jolın Harvey, Wilber J. Earl, Philander Colton and L. C. Zabriskie.

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A conspiracy had been concocted by the Federal officials for the arrest of Brigham Young on a charge of counterfeiting,-the trumped-up case mentioned previously. This attempt was made about the time that the troops were withdrawn from Provo. A young artist, an engraver, residing at Salt Lake City, had been employed by certain parties from Camp Floyd to duplicate a plate used by the Quarter-master of that post for notes drawn upon the assistant treasurers of the United States at St. Louis and New York. The artist, who was very clever, did his work well, but it is believed was not aware that he was committing a criminal act. This, however, did not suffice to shield him. The fraud being discovered, the principal, one Brewer, who had employed the engraver to make the plate, was arrested at Camp Floyd. He immediately turned states evidence, shifting the onus from his own shoulders to those of the artist, and also endeavoring to implicate President Young in the affair. The charge against the latter was absolutely groundless, but it suited the purpose of the conspirators, and was simply another attempt to make "some person high in authority" responsible for the misdeed of a comparatively obscure individual. A writ was issued for the arrest of the artist, and another for the apprehension of Brigham Young. The U. S. Marshal was to serve the writs, and if resisted, as it was fully expected he would be, General Johnston's artillery was to make a breach in the wall surrounding the residence of the ex-Governor, who would be taken by force and carried to Camp Floyd.

Such was the program which certain officers from camp, entrusted with the service of the writs, laid before Governor Cumming, soliciting his co-operation in the matter. To the artist's apprehension, His Excellency offered no objection; in fact he helped to secure it; but to the arrest of Brigham Young on such a baseless charge he would not listen. Said the Governor to the officers: "When you have a right to take Brigham Young, gentle- men, you shall have him without creeping through walls, you shall enter by his door with heads erect, as becomes representatives of

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your government. But till that time, gentlemen, you can't touch Brigham Young while I live, by G-d."

Discomfited, the officers returned to Camp Floyd. It was now rumored that General Johnston would send two regiments and a battery of artillery to enforce the writ for the arrest of the Mormon leader. Governor Cumming promptly informed General Wells of this report, and directed him to hold the militia in readiness to repel the threatened assault. Five thousand men flew to arms in response to this order, and eagerly awaited the issue. But the regiments from Camp Floyd did not come. General Johnston had evidently changed his mind. Soon afterward the letter from the United States Attorney-General, in answer to Judges Sinclair and Cradlebaugh came to hand. That letter decided that the troops could be used as a posse to enforce the processes of the courts only upon the call of the Governor. The power of the judicial-military conspirators was thus broken. A few extracts from this letter of Judge Black's, which was dated May 17th, 1859, are here inserted. Said the great jurist to the Utah judges:

The condition of things in Utah made it extremely desirable that the judges appointed for that Territory should confine themselves strictly within their own official sphere. The Government had a district attorney, who was charged with the duties of a public accuser, and a marshal, who was responsible for the arrest and safe-keeping of criminals. For the judges there was nothing left except to hear patiently the cases brought before them, and to determine them impartially according to the evidence adduced on both sides. * * * *

The Governor is the supreme Executive of the Territory. He is responsible for the public peace. From the general law of the land, the nature of his office, and the instructions he received from the State department, it ought to have been understood that he alone had power to issue a requisition for the movement of troops from one part of the Territory to another,-that he alone could put the military forces of the Union and the people of the Territory into relations of general hostility with one another. The instructions given to the Commanding-General by the War Department are to the same effect. In that paper a "requisition " is not spoken of as a thing which anybody except the Governor can make. It is true that in one clause the General is told that if the Governor, judges, or the marshal shall find it necessary to summon directly a part of the troops to aid either in the performance of his duty, he (the General) is to see the summons promptly obeyed. This was manifestly intended to furnish the means of repelling an opposition which might be too strong for civil posse, and too sudden to admit of a formal requisition of the

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Governor upon the military commander. An officer finds himself resisted in the discharge of his duty, and he calls to his aid first the citizens, and, if they are not sufficient, the soldiers. This would be directly summoning a part of the troops. A direct summons and a requisition are not convertible terms. * * *

In a Territory like Utah, the person who exercises this last mentioned power can make war and peace when he pleases, and holds in his hands the issues of life and death for thousands. Surely it was not intended to cloth each one of the judges, as well as the marshal and all his deputies, with this tremendous authority. Especially does this construction seem erroneous when we reflect that these different officers might make requisitions conflicting with one another, and all of them crossing the path of the Governor. * * * * *

On the whole the President is very decidedly of opinion-

1. That the Governor of the Territory alone has power to issue a requisition upon the commanding-general for the whole or part of the army ;

2. That there was no apparent occasion for the presence of the troops at Provo.

3. That if a rescue of the prisoners in custody had been attempted, it was the duty of the marshal, and not of the judge, to summon the force which might be necessary to prevent it ;

4. That the troops ought not to have been sent to Provo, without the concurrence of the Governor, nor kept there against his remonstrance;

5. That the disregard of these principles and rules of action has been in many ways extremely unfortunate.

A strong effort was now made by the anti-Mormons to have Governor Cumming removed, and another executive, more in harmony with their views and policies, appointed in his stead. To this end a mass meeting of Gentiles convened at Camp Floyd in the latter part of July. Among those present were the Federal Judges and Dr. Garland Hurt. An address was issued, accusing the Mormons of numerous crimes, declaring that they were still disloyal, and that President Buchanan had been deceived and had done a great wrong in withdrawing from the courts the protecting power of the military.

That same month these "disloyal Mormons" had celebrated, in response to the following order, the natal day of American liberty :

SPECIAL ORDER NO. 2.

HEADQUARTERS NAUVOO LEGION,

Adjutant-General's Office, G. S. L. City, July 1st, 1859.

Monday, the 4th, will be the eighty-third anniversary of the hirth of American freedom. It is the duty of every American citizen to commemorate the great event ; not

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in a boisterous revelry, but with hearts full of gratitude to Almighty God the Great Father of our rights.

The Lieutenant-General directs for the celebration in this city as follows :

1st .- At sunrise a salute of thirteen guns will be fired, commencing near tlie residence of His Excellency the Governor, to be answered from a point on South Temple Street, near the residence of President Brigham Young.

The national flag will be hoisted at the signal from the first gun, simultaneously at the residences of Governor Cumming and President Young, at the office of the Territorial Secretary, and the residence of the United States Attorney. Captain Pitt's band will be stationed at sunrise opposite the residence of Governor Cumming, and Captain Ballo's band opposite the residence of President Young.

At the hoisting of the flags the bands will play the " Star Spangled Banner."

2nd .- After the morning salute the guns will be parked at the Court House till noon, when a salute of thirty-three guns will be fired.

3rd .- At sunset a salute of five guns, in honor of the Territories, will be fired and the flags lowered.

4th .- For the above service Lieutenant Atwood and two platoons of artillery will be detailed. Two six-pounder iron guns will be used for the salutes. Also a first lieutenant and two platoons of the 1st Cavalry will be detailed as a guard, and continue on guard through the day. The whole detachment will be dismissed after the sunset salute.

5th .- Col. J. C. Little, of the General's staff, will perform the duties of marshal of the day, with permission to select such deputies as he may require to assist him. The Declaration of Independence will be read by him from the steps of the Court House at noon.

6th .- The bands and the services to be performed by them will be under the direction of Col. Duzette.

By order of LIEUTENANT-GENERAL DANIEL H. WELLS, ADJUTANT-GENERAL JAMES FERGUSON.

Almost simultaneously with the effort put forth by local Gentiles for the removal of Governor Cumming, the friends of General Johnston, at Washington, brought a strong pressure to bear upon President Buchanan for the same purpose. Johnston at that time was quite an influential personage. His great military ability was recognized, and he was regarded as a very likely successor to the aged veteran, Winfield Scott, General-in-Chief of the United States Army. In fact, his friends at the capital were working to that end. To the influence exerted against Governor Cumming, who was looked upon as a foe to General Johnston, and was indeed a very lion in his

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path, President Buchanan would probably have yielded, had not that staunch friend of Utah, Colonel Thomas L. Kane, who also had great influence at the seat of government, and to whom the President felt particularly grateful for his recent services in the west, by a master-stroke of political strategy thwarted the scheme for the Governor's displacement .* Colonel Kane had been solicited by the Historical Society of New York City to deliver a lecture on Utah affairs, but had postponed the acceptance of the invitation. Hearing of the movement against Governor Cumming, and learning that President Buchanan had asked of a mutual friend how the proposed removal would be likely to affect Colonel Kane, the latter, being determined that Cumming, whom he regarded as a friend to the Territory, should be retained in office, saw that now was an opportune time to lecture in the metropolis on Utah affairs. Arrangements were forthwith concluded, and though suffering from an attack of pleurisy, the Colonel proceeded from Philadelphia to New York for that purpose. His effort was entirely successful. During the lecture he took particular pains to eulogize Governor Cumming for his wise and able administration, and declared him to be admirably fitted for the duties of his difficult and trying position. Next morning condensed reports of the lecture appeared in all the metropolitan newspapers and were scattered broad-cast over the country by the associated press. The result was that public opinion was turned completely in Cumming's favor, and President Buchanan, politic as ever, refused to remove him, and he was continued in office till the close of his term.

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History of Utah, Part 65

Author: Whitney, Orson Ferguson Publication date: 1892 Publisher: Salt Lake City, Cannon Number of Pages: 1026

Author: Whitney, Orson Ferguson
Publication date: 1892
Publisher: Salt Lake City, Cannon
Number of Pages: 1026