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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