The next federal officers for Utah appointed by the President (in
August, 1852) were Lazarus H. Reid of New York to be chief justice,
Leonidas Shaver, associate justice, and B. G. Ferris, secretary. Neither
of these officers incurred the Mormon wrath. Both of the judges died
while in office, and the next chief justice was John F. Kinney, who
had occupied a seat on the Iowa Supreme Bench, with W. W. Drummond of
Illinois, and George P. Stiles, one of Joseph Smith's counsel at the
time of the prophet's death, as associates. A. W. Babbitt received the
appointment of secretary of the territory.*
* Some years later Babbitt was killed. Mrs. Waite, in "The Mormon
Prophet" (p. 34) says: "In the summer of 1862 Brigham was referring to
this affair in a tea-table conversation at which judge Waite and the
writer of this were present. After making some remarks to impress
upon the minds of those present the necessity of maintaining friendly
relations between the federal officers and the authorities of the
church, he used language substantially as follows: 'There is no need of
any difficulty, and there need be none if the officers do their duty and
mind their affairs. If they do not, if they undertake to interfere with
affairs that do not concern them, I will not be far off. There was Almon
W. Babbitt. He undertook to quarrel with me, but soon afterward was
killed by Indians."
The territorial legislature had continued to meet from time to time,
Young having a seat of honor in front of the Speaker at each opening
joint session, and presenting his message. The most important measure
passed was an election law which practically gave the church authorities
control of the ballot. It provided that each voter must hand his ballot,
folded, to the judge of election, who must deposit it after numbering
it, and after the clerk had recorded the name and number. This, of
course, gave the church officers knowledge concerning the candidate for
whom each man voted. Its purpose needs no explanation.
In August, 1854, a force of some three hundred soldiers, under command
of Lieutenant Colonel E. J. Steptoe of the United States army, on their
way to the Pacific coast, arrived in Salt Lake City and passed the
succeeding winter there. Young's term as governor was about to expire,
and the appointment of his successor rested with President Pierce.
Public opinion in the East had become more outspoken against the
Mormons since the resignation of the first federal officers sent to the
territory, the "revelation" concerning polygamy having been publicly
avowed meanwhile, and there was an expressed feeling that a non-Mormon
should be governor. Accordingly, President Pierce, in December, 1854,
offered the governorship to Lieutenant Colonel Steptoe.
Brigham Young, just before and after this period, openly declared that
he would not surrender the actual government of the territory to any
man. In a discourse in the Tabernacle, on June 19, 1853, in which
he reviewed the events of 1851, he said, "We have got a territorial
government, and I am and will be governor, and no power can hinder it,
until the Lord Almighty says, 'Brigham, you need not be governor any
longer.'"* In a defiant discourse in the Tabernacle, on February 18,
1855, Young again stated his position on this subject: "For a man to
come here [as governor] and infringe upon my individual rights and
privileges, and upon those of my brethren, will never meet my sanction,
and I will scourge such a one until he leaves. I am after him." Defining
his position further, and the independence of his people, he said: "Come
on with your knives, your swords, and your faggots of fire, and destroy
the whole of us rather than we will forsake our religion. Whether
the doctrine of plurality of wives is true or false is none of your
business. We have as good a right to adopt tenets in our religion as
the Church of England, or the Methodists, or the Baptists, or any other
denomination have to theirs."**
* Journal of Discourses, Vol. 1, p. 187.
** Ibid., Vol. II, pp. 187-188.
Having thus defied the federal appointing power, the nomination of
Colonel Steptoe as Young's successor might have been expected to cause
an outbreak; but the Mormon leaders were always diplomatic--at least,
when Young did not lose his temper. The outcome of this appointment was
its declination by Steptoe, a petition to President Pierce for Young's
reappointment signed by Steptoe himself and all the federal officers in
the territory, and the granting of the request of these petitioners.
Mrs. C. B. Waite, wife of Associate Justice C. B. Waite, one of
Lincoln's appointees, gives a circumstantial account of the manner in
which Colonel Steptoe was influenced to decline the nomination and sign
the petition in favor of Young.* Two women, whose beauty then attracted
the attention of Salt Lake City society, were a relative by marriage
of Brigham Young and an actress in the church theatre. The federal army
officers were favored with a good deal of their society. When Steptoe's
appointment as governor was announced, Young called these women to
his assistance. In conformity with the plan then suggested, Young one
evening suddenly demanded admission to Colonel Steptoe's office, which
was granted after considerable delay. Passing into the back room, he
found the two women there, dressed in men's clothes and with their faces
concealed by their hats. He sent the women home with a rebuke, and then
described to Steptoe the danger he was in if the women's friends learned
of the incident, and the disgrace which would follow its exposure.
Steptoe's declination of the nomination and his recommendation of Young
soon followed.
President Pierce's selection of judicial officers for Utah was not made
with proper care, nor with due regard to the dignity of the places to
be filled. Chief Justice Kinney took with him to Utah a large stock of
goods which he sold at retail after his arrival there, and he also kept
a boarding-house in Salt Lake City. With his "trade" dependent on Mormon
customers, he had every object in cultivating their popularity. Known as
a "Jack-Mormon" in Iowa, Mrs. Waite declared that his uniform course, to
the time about which she wrote, had been "to aid and abet Brigham Young
in his ambitious schemes," and that he was then "an open apologist
and advocate of polygamy." Judge Drummond's course in Utah was in many
respects scandalous. A former member of the bench in Illinois writes to
me: "I remember that when Drummond's appointment was announced there was
considerable comment as to his lack of fitness for the place, and, after
the troubles between him and the Mormon leaders got aired through the
press, members of the bar from his part of the state said they did not
blame the Mormons--that it was an imposition upon them to have sent him
out there as a judge. I never heard his moral character discussed."
If the Mormon leaders had shown any respect for the government at
Washington, or for the reputable men appointed to territorial offices,
more attention might be paid to their hostility manifested to certain
individuals.
* "The Mormon Prophet," p. 36, confirmed by Beadle's "Life in
Utah," p. 171.
A few of the leading questions at issue under the new territorial
officers will illustrate the nature of the government with which they
had to deal. The territorial legislature had passed acts defining the
powers and duties of the territorial courts. These acts provided that
the district courts should have original jurisdiction, both civil and
criminal, wherever not otherwise provided by law. Chapter 64 (approved
January 14, 1864) provided as follows: "All questions of law, the
meaning of writings other than law, and the admissibility of testimony
shall be decided by the court; and no laws or parts of laws shall be
read, argued, cited, or adopted in any courts, during any trial,
except those enacted by the governor and legislative assembly of this
territory, and those passed by the Congress of the United States, WHEN
APPLICABLE; and no report, decision, or doings of any court shall be
read, argued, cited, or adopted as precedent in any other trial."
This obliterated at a stroke the whole body of the English common law.
Another act provided that, by consent of the court and the parties, any
person could be selected to act as judge in a particular case. As the
district court judges were federal appointees, a judge of probate
was provided for each county, to be elected by joint ballot of the
legislature. These probate courts, besides the authority legitimately
belonging to such tribunals, were given "power to exercise original
jurisdiction, both civil and criminal, as well in chancery as at common
law." Thus there were in the territory two kinds of courts, to one of
which alone a non-Mormon could look for justice, and to the other of
which every Mormon would appeal when he was not prevented.
The act of Congress organizing the territory provided for the
appointment of a marshal, approved by the President; the territorial
legislature on March 3, 1852, provided for another marshal to be elected
by joint ballot, and for an attorney general. A non-Mormon had succeeded
the original Mormon who was appointed as federal marshal, and he took
the ground that he should have charge of all business pertaining to the
marshal's office in the United States courts. Judge Stiles having issued
writs to the federal marshal, the latter was not able to serve them, and
the demand was openly made that only territorial law should be enforced
in Utah. When the question of jurisdiction came before the judge, three
Mormon lawyers appeared in behalf of the Mormon claim, and one of them,
James Ferguson, openly told the judge that, if he decided against him,
they "would take him from the bench d--d quick." Judge Stiles adjourned
his court, and applied to Governor Young for assistance; but got only
the reply that "the boys had got their spunk up, and he would not
interfere," and that, if Judge Stiles could not enforce the United
States laws, the sooner he adjourned court the better.* All the records
and papers of the United States court were kept in Judge Stiles's
office. In his absence, Ferguson led a crowd to the office, seized and
deposited in a safe belonging to Young the court papers, and, piling up
the personal books and papers of the judge in an outhouse, set fire to
them. The judge, supposing that the court papers were included in the
bonfire, innocently made that statement in an affidavit submitted on his
return to Washington in 1857.
* This account is given in Mrs. Waite's "The Mormon Prophet."
Tullidge omits the incident in his "History of Salt Lake City."
Judge Drummond, reversing the policy of Chief Justice Kinney and Judge
Shaver, announced, before the opening of the first session of his court,
that he should ignore all proceedings of the territorial probate courts
except such as pertained to legitimate probate business. This position
was at once recognized as a challenge of the entire Mormon judicial
system,* and steps were promptly taken to overthrow it. There are
somewhat conflicting accounts of the method adopted. Mrs. Waite, in
her "Mormon Prophet," Hickman, in his confessions, and Remy, in his
"Journey," have all described it with variations. All agree that a
quarrel was brought about between the judge and a Jew, which led to the
arrest of both of them. "During the prosecution of the case," says Mrs.
Waite, "the judge gave some sort of a stipulation that he would not
interfere any further with the probate courts."
* A member of the legislature wrote to his brother in England, of
Drummond: He has brass to declare in open court that the Utah laws
are founded in ignorance, and has attempted to set some of the most
important ones aside,... and he will be able to appreciate the merits of
a returned compliment some day."
* Tullidge, "History of Salt Lake City," p. 412.
Judge Stiles left the territory in the spring of 1857, and gave the
government an account of his treatment in the form of an affidavit when
he reached Washington. Judge Drummond held court a short time for Judge
Stiles in Carson County (now Nevada)* in the spring of 1857, and then
returned to the East by way of California, not concealing his opinion
of Mormon rule on the way, and giving the government a statement of the
case in a letter resigning his judgeship.
* The settlement of what is now Nevada was begun by both Mormons
and non-Mormons in 1854, and, the latter being in the majority, the Utah
legislature organized the entire western part of the territory as one
county, called Carson, and Governor Young appointed Orson Hyde
its probate judge. Many persons coming in after the settlement of
California, as miners, farmers, or stock-raisers, the Mormons saw their
majority in danger, and ordered the non-Mormons to leave. Both sides
took up arms, and they camped in sight of each other for two weeks. The
Mormons, learning that their opponents were to receive reenforcements
from California, agreed on equal rights for all in that part of the
territory; but when the legislature learned of this, it repealed the
county act, recalled the judge, and left the district without any legal
protection whatever. Thus matters remained until late in 1858, when a
probate judge was quietly appointed for Carson Valley. After this an
election was held, but although the non-Mormons won at the polls, the
officers elected refused to qualify and enforce Mormon statutes.--Letter
of Delegate-elect J. M. Crane of Nevada, "The Mormon Prophet," pp.
4l-45.
After the departure of the non-Mormon federal judges from Utah, the only
non-Mormon officers left there were those belonging to the office of
the surveyor general, and two Indian agents. Toward these officers the
Mormons were as hostile as they had been toward the judges, and the
latest information that the government received about the disposition
and intentions of the Mormons came from them.
The Mormon view of their title to the land in Salt Lake Valley appeared
in Young's declaration on his first Sunday there, that it was theirs and
would be divided by the officers of the church.* Tullidge, explaining
this view in his history published in 1886, says that this was simply
following out the social plan of a Zion which Smith attempted in Ohio,
Missouri, and Illinois, under "revelation." He explains: "According to
the primal law of colonization, recognized in all ages, it was THEIR
LAND if they could hold and possess it. They could have done this so far
as the Mexican government was concerned, which government probably never
would even have made the first step to overthrow the superstructure of
these Mormon society builders. At that date, before this territory was
ceded to the United States, Brigham Young, as the master builder of the
colonies which were soon to spread throughout these valleys, could with
absolute propriety give the above utterances on the land question."**
* "They will not, however, without protest, buy the land, and
hope that grants will be made to actual settlers or the state,
sufficient to cover their improvements. If not, the state will be
obliged to buy, and then confirm the titles already given."--Gunnison.
"The Mormons," 1852, p. 414.
** Captain Gunnison, who as lieutenant accompanied Stansbury's
surveying party and printed a book giving his personal observations, was
murdered in 1853 while surveying a railroad route at a camp on
Sevier River. His party were surprised by a band of Pah Utes while at
breakfast, and nine of them were killed. The charge was often made that
this massacre was inspired by Mormons, but it has not been supported by
direct evidence.
When the act organizing the territory was passed, very little of the
Indian title to the land had been extinguished, and the Indians made
bitter complaints of the seizure of their homes and hunting-grounds, and
the establishment of private rights to canyons and ferries, by the
people who professed so great a regard for the "Lamanites." Congress,
in February, 1855, created the office of surveyor general of Utah and
defined his duties. The presence of this officer was resented at once,
and as soon as Surveyor General David H. Burr arrived in Salt Lake City
the church directed all its members to convey their lands to Young as
trustee in trust for the church, "in consideration of the good will
which ---- have to the church of Jesus Christ of Latter-Day Saints."
Explaining this order in a discourse in the Tabernacle on March 1, 1857,
H. C. Kimball said: "I do not compel you to do it; the trustee in trust
does not; God does not. But He says that if you will do this and the
other things which He has counselled for our good, do so and prove
Him.... If you trifle with me when I tell you the truth, you will trifle
with Brother Brigham, and if you trifle with him you will also trifle
with angels and with God, and thus you will trifle yourselves down to
hell."*
* Journal of Discourses, Vol. IV, pp. 249, 252.
The Mormon policy toward the surveyors soon took practical shape. On
August 30, 1856, Burr reported a nearly fatal assault on one of his
deputies by three Danites. Deputy Surveyor Craig reported efforts of
the Mormons to stir up the Indians against the surveyors, and quoted a
suggestion of the Deseret News that the surveyors be prosecuted in the
territorial court for trespass. In February, 1857, Burr reported a visit
he had had from the clerk of the Supreme Court, the acting district
attorney, and the territorial marshal, who told him plainly that the
country was theirs.
They showed him a copy of a report that he had made to Washington,
charging Young with extensive depredations, warned him that he could
not write to Washington without their knowledge, and ordered that such
letter writing should stop. "The fact is," Burr added, "these people
repudiate the authority of the United States in this country, and are in
open rebellion against the general government.... So strong have been
my apprehensions of danger to the surveyors that I scarcely deemed it
prudent to send any out.... We are by no means sure that we will be
permitted to leave, for it is boldly asserted we would not get away
alive."* He did escape early in the spring.
* For text of reports, see House Ex. Doc. No. 71, 1st Session,
35th Congress.
The reports of the Indian agents to the commissioner at Washington at
this time were of the same character. Mormon trespasses on Indian land
had caused more than one conflict with the savages, but, when there was
a prospect of hostilities with the government, the Mormons took steps to
secure Indian aid. In May, 1855, Indian Agent Hurt called the attention
of the commissioner at Washington to the fact that the Mormons at their
recent Conference had appointed a large number of missionaries to preach
among the "Lamanites"; that these missionaries were "a class of lawless
young men," and, as their influence was likely to be in favor of
hostilities with the whites, he suggested that all Indian officers
receive warning on the subject. Hurt was added to the list of fugitive
federal officers from Utah, deeming it necessary to flee when news came
of the approach of the troops in the fall of 1857. His escape was quite
dramatic, some of his Indian friends assisting him. They reached General
Johnston's camp about the middle of October, after suffering greatly
from hunger and cold.
The Mormon leaders could scarcely fail to realize that a point must be
reached when the federal government would assert its authority in
Utah territory, but they deemed a conflict with the government of less
serious moment than a surrender which would curtail their own civil and
criminal jurisdiction, and bring their doctrine of polygamy within reach
of the law. A specimen of the unbridled utterances of these leaders
in those days will be found in a discourse by Mayor Grant in the
Tabernacle, on March 2, 1856:--
"Who is afraid to die? None but the wicked. If they want to send troops
here, let them come to those who have imported filth and whores, though
we can attend to that class without so much expense to the Government.
They will threaten us with United States troops! Why, your impudence and
ignorance would bring a blush to the cheek of the veriest camp-follower
among them. We ask no odds of you, you rotten carcasses, and I am not
going to bow one hair's breadth to your influence. I would rather be cut
into inch pieces than succumb one particle to such filthiness .... If
we were to establish a whorehouse on every corner of our streets, as in
nearly all other cities outside of Utah, either by law or otherwise, we
should doubtless then be considered good fellows."*
* Journal of Discourses, Vol. III, pp. 234-235
Two weeks later Brigham Young, in a sermon in the same place, said, "I
said then, and I shall always say, that I shall be governor as long as
the Lord Almighty wishes me to govern this people."*
* Ibid., p. 258.
In January, 1853, Orson Pratt, as Mormon representative, began the
publication in Washington, D.C., of a monthly periodical called The
Seer, in which he defended polygamy, explained the Mormon creed, and set
forth the attitude of the Mormons toward the United States government.
The latter subject occupied a large part of the issue of January,
1854, in the shape of questions and answers. The following will give an
illustration of their tone:--
"Q.--In what manner have the people of the United States treated the
divine message contained in the Book of Mormon?
"A.--They have closed their eyes, their ears, their hearts and their
doors against it. They have scorned, rejected and hated the servants of
God who were sent to bear testimony of it.
"Q.--In what manner has the United States treated the Saints who have
believed in this divine message?
"A.--They have proceeded to the most savage and outrageous
persecutions;... dragged little children from their hiding-places, and,
placing the muzzles of their guns to their heads, have blown out their
brains, with the most horrid oaths and imprecations. They have taken
the fair daughters of American citizens, bound them on benches used for
public worship, and there, in great numbers, ravished them until death
came to their relief."
Further answers were in the shape of an argument that the federal
government was responsible for the losses of the Saints in Missouri and
Illinois.