The Last Years Of Brigham Young





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.





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