Governor Doty died in June, 1865, without coming in open conflict with
Young, and was succeeded by Charles Durkee, a native of Vermont, but
appointed from Wisconsin, which state he had represented in the United
States Senate. He resigned in 1869, and was succeeded by J. Wilson
Shaffer of Illinois, appointed by President Grant at the request of
Secretary of War Rawlins, who, in a visit to the territory in 1868,
concluded that its welfare required a governor who would assert his
authority. Secretary S. A. Mann, as acting governor, had, just
before Shaffer's arrival, signed a female suffrage bill passed by the
territorial legislature. This gave offence to the new governor, and Mann
was at once succeeded by Professor V. H. Vaughn of the University of
Alabama, and Chief Justice C. C. Wilson (who had succeeded Titus) by
James B. McKean. The latter was a native of Rensselaer County, New York;
had been county judge of Saratoga County from 1854 to 1858, a member
of the 36th and 37th Congresses, and colonel of the 72nd New York
Volunteers.
Governor Shaffer's first important act was to issue a proclamation
forbidding all drills and gatherings of the militia of the territory
(which meant the Nauvoo Legion), except by the order of himself or the
United States marshal. Wells, signing himself "Lieutenant General," sent
the governor a written request for the suspension of this order. The
governor, in reply, reminded Wells that the only "Lieutenant General"
recognized by law was then Philip H. Sheridan, and declined to assist
him in a course which "would aid you and your turbulent associates to
further convince your followers that you and your associates are more
powerful than the federal government." Thus practically disappeared this
famous Mormon military organization.
Governor Shaffer was ill when he reached Utah, and he died a few days
after his reply to Wells was written, Secretary Vaughn succeeding him
until the arrival of G. A. Black, the new secretary, who then became
acting governor pending the arrival of George L. Woods, an ex-governor
of Oregon, who was next appointed to the executive office.
As soon as the new federal judges, who were men of high personal
character, took their seats, they decided that the United States
marshal, and not the territorial marshal, was the proper person to
impanel the juries in the federal courts, and that the attorney general
appointed by the President under the Territorial Act, and not the
one elected under that act, should prosecute indictments found in the
federal courts. The chief justice also filled a vacancy in the office of
federal attorney. The territorial legislature of 1870, accordingly, made
no appropriation for the expenses of the courts; and the chief justice,
in dismissing the grand and petit juries on this account, explained to
them that he had heard one of the high priesthood question the right of
Congress even to pass the Territorial Act.
In September, 1871, the United States marshal summoned a grand jury from
nine counties (twenty-three jurors and seventeen talesmen) of whom only
seven were Mormons. All the latter, examined on their voir dire,
declared that they believed that polygamy was a revelation to the
church, and that they would obey the revelation rather than the law, and
all were successfully challenged. This grand jury, early in October,
found indictments against Brigham Young, "General" Wells, G. Q. Cannon,
and others under a territorial statute directed against lewdness and
improper cohabitation. This action caused intense excitement in the
Mormon capital. Prosecutor Baskin was quoted as saying that the troops
at Camp Douglas would be used to enforce the warrant for Young's arrest
if necessary, and the possible outcome has been thus portrayed by the
Mormon historian:--"It was well known that he [Young] had often declared
that he never would give himself up to be murdered as his predecessor,
the Prophet Joseph, and his brother Hyrum had been, while in the hands
of the law, and under the sacred pledge of the state for their safety;
and, ere this could have been repeated, ten thousand Mormon Elders would
have gone into the jaws of death with Brigham Young. In a few hours the
suspended Nauvoo Legion would have been in arms."*
* Tullidge's "History of Salt Lake City," p. 527.
The warrant was served on Young at his house by the United States
marshal, and, as Young was ill, a deputy was left in charge of him. On
October 9 Young appeared in court with the leading men of the church,
and a motion to quash the indictment was made before the chief justice
and denied.
The same grand jury on October 28 found indictments for murder against
D. H. Wells, W. H. Kimball, and Hosea Stout for alleged responsibility
for the killing of Richard Yates during the "war" of 1857. The fact that
the man was killed was not disputed; his brains were knocked out with
an axe as he was sleeping by the side of two Mormon guards.* The defence
was that he died the death of a spy. Wells was admitted to bail in
$50,000, and the other two men were placed under guard at Camp Douglas.
Indictments were also found against Brigham Young, W. A. Hickman, O.
P. Rockwell, G. D. Grant, and Simon Dutton for the murder of one of the
Aikin party at Warm Springs. They were all admitted to bail.
* Hickman tells the story in his "Brigham's Destroying Angel," p.
122.
When the case against Young, on the charge of improper cohabitation, was
called on November 20, his counsel announced that he had gone South for
his health, as was his custom in winter, and the prosecution thereupon
claimed that his bail was forfeited. Two adjournments were granted at
the request of his counsel. On January 3 Young appeared in court, and
his counsel urged that he be admitted to bail, pleading his age and ill
health. The judge refused this request, but said that the marshal could,
if he desired, detain the prisoner in one of Young's own houses. This
course was taken, and he remained under detention until released by the
decision of the United States Supreme Court.
In April, 1872, that court decided that the territorial jury law
of Utah, in force since 1859, had received the implied approval of
Congress; that the duties of the attorney and marshal appointed by the
President under the Territorial Act "have exclusive relation to cases
arising under the laws and constitution of the United States," and
"the making up of the jury list and all matters connected with the
designation of jurors are subject to the regulation of territorial
law."* This was a great victory for the Mormons.
* Chilton vs. Englebrech, 13 Wallace, p. 434.
In October, 1873, the United States Supreme Court rendered its decision
in the case of "Snow vs. The United States" on the appeal from Chief
Justice McKean's ruling about the authority of the prosecuting officers.
It overruled the chief justice, confining the duties of the attorney
appointed by the President to cases in which the federal government was
concerned, concluding that "in any event, no great inconvenience
can arise, because the entire matter is subject to the control and
regulation of Congress." *
* Wallace's "Reports," Vol. XVIII, p. 317.
The following comments, from three different sources, will show the
reader how many influences were then shaping the control of authority in
Utah:--"At about this time [December, 1871] a change came in the action
of the Department of justice in these Utah prosecutions, and fair-minded
men of the nation demanded of the United States Government that it
should stop the disgraceful and illegal proceedings of Judge McKean's
court. The influence of Senator Morton was probably the first and
most potent brought to bear in this matter, and immediately thereafter
Senator Lyman Trumbull threw the weight of his name and statesmanship
in the same direction, which resulted in Baskin and Maxwell being
superseded,... and finally resulted in the setting aside of two years
of McKean's doings as illegal by the august decision of the Supreme
Court."--Tullidge, "History of Salt Lake City," p. 547.
"The Attorney for the Mormons labored assiduously at Washington, and,
contrary to the usual custom in the Supreme Court, the forthcoming
decision had been whispered to some grateful ears. The Mormon
anniversary conference beginning on the sixth of April was continued
over without adjournment awaiting that decision."--"Rocky Mountain
Saints," p. 688.
"Thus stood affairs during the winter of 1870-71. The Gentiles had the
courts, the Mormons had the money. In the spring Nevada came over to run
Utah. Hon. Thomas Fitch of that state had been defeated in his second
race for Congress; so he came to Utah as Attorney for the Mormons.
Senator Stewart and other Nevada politicians made heavy investments in
Utah mines; litigation multiplied as to mining titles, and Judge McKean
did not rule to suit Utah.... The great Emma mine, worth two or three
millions, became a power in our judicial embroglio. The Chief Justice,
in various rulings, favored the present occupants. Nevada called upon
Senator Stewart, who agreed to go straight to Long Branch and see that
McKean was removed. But Ulysses the Silent... promptly made reply that
if Judge McKean had committed no greater fault than to revise a little
Nevada law, he was not altogether unpardonable."--Beadle, "Polygamy," p.
429.
The Supreme Court decisions left the federal courts in Utah practically
powerless, and President Grant understood this. On February 14, 1873,
he sent a special message to Congress, saying that he considered it
necessary, in order to maintain the supremacy of the laws of the United
States, "to provide that the selection of grand and petit jurors for
the district courts [of Utah], if not put under the control of federal
officers, shall be placed in the hands of persons entirely independent
of those who are determined not to enforce any act of Congress obnoxious
to them, and also to pass some act which shall deprive the probate
courts, or any court created by the territorial legislature, of any
power to interfere with or impede the action of the courts held by the
United States judges."
In line with this recommendation Senator Frelinghuysen had introduced a
bill in the Senate early in February, which the Senate speedily passed,
the Democrats and Schurz, Carpenter, and Trumbull voting against it.
Mormon influence fought it with desperation in the House, and in the
closing hours of the session had it laid aside. The diary of Delegate
Hooper says on this subject, "Maxwell [the United States Marshal for
Utah] said he would take out British papers and be an American citizen
no longer. Claggett [Delegate from Montana] asserted that we had spent
$200,000 on the judiciary committee, and Merritt [Delegate from Idaho]
swore that there had been treachery and we had bribed Congress."*
* The Mormons do not always conceal the influences they employ to
control legislation in which they are interested. Thus Tullidge,
referring to the men of whom their Cooperative Institution buys goods,
says: "But Z. C. M. I. has not only a commercial significance in the
history of our city, but also a political one. It has long been the
temporal bulwark around the Mormon community. Results which have been
seen in Utah affairs, preservative of the Mormon power and people,
unaccountable to 'the outsider' except on the now stale supposition that
'the Mormon Church has purchased Congress,' may be better traced to the
silent but potent influence of Z. C. M. I. among the ruling business men
of America, just as John Sharp's position as one of the directors of U.
P. R---r,--a compeer among such men as Charles Francis Adams, Jay Gould
and Sidney Dillon--gives him a voice in Utah affairs among the railroad
rulers of America."--"History of Salt Lake City;" p. 734.
In the election of 1872 the Mormons dropped Hooper, who had long served
them as Delegate at Washington, and sent in his place George Q. Cannon,
an Englishman by birth and a polygamist. But Mormon influence in
Washington was now to receive a severe check. On June 23, 1874, the
President approved an act introduced by Mr. Poland of Vermont, and
known as the Poland Bill,* which had important results. It took from the
probate courts in Utah all civil, chancery, and criminal jurisdiction;
made the common law in force; provided that the United States attorney
should prosecute all criminal cases arising in the United States courts
in the territory; that the United States marshal should serve and
execute all processes and writs of the supreme and district courts, and
that the clerk of the district court in each district and the judge of
probate of the county should prepare the jury lists, each containing two
hundred names, from which the United States marshal should draw the
grand and petit juries for the term. It further provided that, when a
woman filed a bill to declare void a marriage because of a previous
marriage, the court could grant alimony; and that, in any prosecution
for adultery, bigamy, or polygamy, a juror could be challenged if he
practised polygamy or believed in its righteousness.
* Chap. 469, 1st Session, 43d Congress.
The suit for divorce brought by Young's wife "No. 19,"--Ann Eliza
Young--in January, 1873, attracted attention all over the country. Her
bill charged neglect, cruel treatment, and desertion, set forth that
Young had property worth $8,000,000 and an income of not less than
$40,000 a year, and asked for an allowance of $1000 a month while the
suit was pending, $6000 for preliminary counsel fees, and $14,000 more
when the final decree was made, and that she be awarded $200,000 for
her support. Young in his reply surprised even his Mormon friends.
After setting forth his legal marriage in Ohio, stating that he and the
plaintiff were members of a church which held the doctrine that "members
thereto might rightfully enter into plural marriages," and admitting
such a marriage in this case, he continued: "But defendant denies that
he and the said plaintiff intermarried in any other or different sense
or manner than that above mentioned or set forth. Defendant further
alleges that the said complainant was then informed by the defendant,
and then and there well knew that, by reason of said marriage, in the
manner aforesaid, she could not have and need not expect the society or
personal attention of this defendant as in the ordinary relation between
husband and wife." He further declared that his property did not exceed
$600,000 in value, and his income $6000 a month.
Judge McKean, on February 25, 1875, ordered Young to pay Ann Eliza $3000
for counsel fees and $500 a month alimony pendente lite, and, when he
failed to obey, sentenced him to pay a fine of $25 and to one day's
imprisonment. Young was driven to his own residence by the deputy
marshal for dinner, and, after taking what clothing he required, was
conducted to the penitentiary, where he was locked up in a cell for a
short time, and then placed in a room in the warden's office for the
night.
Judge McKean was accused of inconsistency in granting alimony, because,
in so doing, he had to give legal sanction to Ann Eliza's marriage
to Brigham while the latter's legal wife was living. Judge McKean's
successor, Judge D. P. Loew, refused to imprison Young, taking the
ground that there had been no valid marriage. Loew's successor, Judge
Boreman, ordered Young imprisoned until the amount due was paid, but he
was left at his house in custody of the marshal. Boreman's successor,
Judge White, freed Young on the ground that Boreman's order was void.
White's successor, Judge Schaeffer, in 1876 reduced the alimony to $100
per month, and, in default of payment, certain of Young's property was
sold at auction and rents were ordered seized to make up the deficiency.
The divorce case came to trial in April, 1877, when Judge Schaeffer
decreed that the polygamous marriage was void, annulled all orders for
alimony, and assessed the costs against the defendant.
Nothing further of great importance affecting the relations of the
church with the federal government occurred during the rest of Young's
life. Governor Woods incurred the animosity of the Mormons by asserting
his authority from time to time ("he intermeddled," Bancroft says). In
1874 he was succeeded by S. B. Axtell of California, who showed such
open sympathy with the Mormon view of his office as to incur the
severest censure of the non-Mormon press. Axtell was displaced in the
following year by G. B. Emery of Tennessee, who held office until the
early part of 1880, when he was succeeded by Eli H. Murray.*
* Governor Murray showed no disposition to yield to Mormon
authority. In his message in 1882 be referred pointedly, among other
matters, to the tithing, declaring that "the poor man who earns a dollar
by the sweat of his brow is entitled to that dollar," and that "any
exaction or undue influence to dispossess him of any part of it, in any
other manner than in payment of a legal obligation, is oppression," and
he granted a certificate of election as Delegate to Congress to Allan G.
Campbell, who received only 1350 votes to 18,568 for George Q. Cannon,
holding that the latter was not a citizen. Governor Murray's resignation
was accepted in March, 1886, and he was succeeded in the following May
by Caleb W. West, who, in turn, was supplanted in May, 1889, by A. L.
Thomas, who was territorial governor when Utah was admitted as a state.