CHAPTER XI

MORMON TREATMENT OF FEDERAL OFFICERS

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.1

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

1 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.""

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.'" 1 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." 2

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 - The diplomatic at least, when Young did not lose his temper.

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 1 Journal of Discourses, Vol. I, p. 187. 2 Ibid., Vol. II, pp. 187–188.

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.1 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,

1 "The Mormon Prophet," p. 36, confirmed by Beadle's "Life in Utah,” p. 171.

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more attention might be paid to their hostility manifested to certain individuals.

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 nonMormon 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, an the demand was openly made that only territorial law shou be enforced in Utah. When the question of jurisdiction ca

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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 dd 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.1 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.

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,2 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."

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

1 This account is given in Mrs. Waite's "The Mormon Prophet." Tullidge omits the incident in his "History of Salt Lake City."

2 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.