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Brigham D. Madsen is Professor Emeritus of History and past vice president of the University of Utah, recipient of a Distinguished Teacher of the Year Award, as well as the Distinguished Service Award from the Utah Academy of Sciences, Arts, and Letters. He is the author of Glory Hunter: A Biography of Patrick Edward Connor (Utah State Historical Society Best Military History Award), North to Montana! Jehus, Bullwhackers, and Mule Skinners on the Montana Trail (Westerners International Best Book Award), The Shoshoni Frontier and the Bear River Massacre (Westerners International Best Book Award), Studies of the Book of Mormon (John Whitmer Historical Association Best Book Award), and other volumes, including his own popular autobiography, Against the Grain: Memoirs of a Western Historian.Excerpt. © Reprinted by permission. All rights reserved.:
The Conditions in Utah Which Caused the Opposition of the Gentiles.
A few days after my arrival in Salt Lake City, in the latter part of August, 1865, I became acquainted with Thomas Hearst of Philadelphia, the son of William Hearst, a distinguished lawyer of that city.
Young Hearst was the agent of James P. Bruner of Philadelphia, who owned the North Star mine situated in Little Cottonwood canyon. Near this property was the Emma mine, the richness of which, disclosed by development a few years afterwards, attracted to Utah a large number of prospectors and miners to whom is due the credit of developing the wonderful mineral resources of the State. Mr. Hearst, in urging me to accompany him to the mine, said he had the utmost confidence that in Utah, upon the completion of the Union Pacific railroad, there would be discovered many rich and extensive mines which would soon constitute one of the most important sources of the wealth of the Territory; and in view of that fact alone, Salt Lake City, prospectively, was a very desirable location for any attorney at law.
I accompanied him to the mine, and from the quantity of galena ore on the dump, the large boulders of the same material disclosed at the point of discovery, and the value of the ore as stated by Mr. Hearst, I was convinced that his confidence in the future of the city was probably well founded.
After this visit I changed my intention of going on to California, and concluded to settle in Salt Lake City. I secured an office and began to study the statutes of the Territory and inquire into its existent political and social conditions.
The provisions of the two following acts of the territorial legislature were the first to attract my attention.
“An Act for the Regulation of Attorneys. Sec. 2. No person or persons employing counsel, in any of the courts of this Territory, shall be compelled by any process of law to pay the counsel so employed for any service rendered as counsel before, or after, or during the process of trial in the case.”
“An Act in Relation to the Judiciary. Sec. 1. That all questions of law, meaning or 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 court 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 trials.
In commenting on the foregoing acts, let me quote from recognized legal authority:
“The criminal law of England, both written and unwritten, in force at the date the colonies gained their independence, became common law in each colony, and remained in force in the states of the Union so far as it was adapted to the condition of the people and in harmony with the genius of their institutions, and so far as it was not changed by the constitution or laws of the particular state.” (1 McLain’s Crim. Law, Sec. 12).
“It is plain, both on principle and authority, that the common law must extend as well to criminal things as to civil. (Bishop’s Crim. Law, Sec. 35).
Bigamy and polygamy are one and the same crime. Blackstone states that the latter term is “the better expression to designate that crime.” At the date of our independence, under the laws of England, bigamy was a felony. Under the statute of James I, Sec. 11, bigamy was punishable by death; and under 9th George IV, any person counseling, aiding, or abetting the offender was equally guilty with him and subject to the same punishment.
All the states except Louisiana, and territories except Utah, had by statute adopted the common law so far as applicable to new conditions. That law was and is indispensably necessary for the proper government of any American community. It was, therefore, the imperative duty of the Utah legislature to adopt it at the first territorial session. Instead of doing so the foregoing absurd section of the judiciary act excluding it was passed. By adopting the common law under which polygamy is a felony, the legislature would have made the practice of the alleged divine polygamy tenet of the Mormon church a crime. For that reason the legislature failed to perform its imperative duty and stultified itself by passing the section which excluded the common law, and all other laws except those passed by Congress and the territorial legislature.
By the provisions of the act of Congress organizing the Territory, the judicial power of the Territory was vested in a supreme court, district courts, probate courts and justices of the peace. By that act the supreme and district courts were given, respectively, chancery and common law jurisdiction, and the jurisdiction of the probate and justices’ courts was to be as limited by law. By an act of the territorial legislature the probate courts were given civil and criminal jurisdiction in all cases except those arising under the acts of Congress. The act in relation to marshals and attorneys provided that there should be elected by a joint vote of both houses of the legislative assembly, a marshal and district attorney, and these officers were respectively made, by said act, the executive and prosecuting officers of the district courts in all cases arising under the laws of the Territory. Moreover, the act of Congress organizing the Territory had already provided for the appointment, by the President of the United States, of executive and prosecuting officers of the district courts.
Another subversion of legal procedure is disclosed in the act prescribing the mode of procuring grand and petit juries for the district courts. This act contained the following provisions:
“Sec. 2. The county court in each county shall at the first session in each year and at subsequent sessions, or other times as a neglect so to do at said first session and as other circumstances may require, make, from the assessment roll of the county, a list containing the names of at least fifty men, residents of the county eligible to serve as jurors.”
The further provisions of said act required the names so selected to be placed in a box in the possession of the clerk of the county court, and that both the grand and petit juries were to be drawn from that box by the territorial marshal or sheriff, and the clerk of the county court. In case the names in the box during any session of the district courts became exhausted, under a provision of said act, talesmen could not be summoned by the court, but the deficiency could only be met by the county court convening and selecting additional names. Until this was done, when the names in the box became exhausted, no case requiring a jury could be tried. To permit the summoning of talesmen—which an ordinary method of filling the panel—might have resulted in forming a jury which was not subject to the will of the priesthood. Said act was evidently formed with a view of making it impossible to impanel any but a jury composed of Mormons. The acts containing the foregoing provisions were passed at the first session of the territorial legislature in 1852, and were approved by Brigham Young, then governor of the Territory.
As the offices of territorial marshal and the county courts were, under an act of the legislature, elective, none but members of the Mormon church were ever elected to any of said offices as long as the act relating to the selection jurors remained in force. It remained in force for many years, and until superseded by an act of Congress. The evident intent of the provisions to which I have referred was to secure immunity to those practicing polygamy, and to enable Brigham Young, the President of the High Priesthood1 of the Mormon church, and his successors, to control the execution of the laws by the district courts in all matters requiring trial by jury. That such was the purpose and effect of said provisions is apparent from the failure for so many years to execute the law of Congress respecting polygamy, and to indict and bring to trial the perpetrators of many horrible crimes hereinafter mentioned. And the sentiments expressed in numerous Mormon sermons of the period is practically conclusive evidence on this point.
Governor Harding, in a message to the legislature, said:
“I am aware that there is a prevailing opinion here that said act (the act of Congress on the subject of polygamy) is unconstitutional, and therefore it is recommended by those in high authority that no regard whatever should be paid to the same. I take this occasion to warn the people of this Territory against such dangerous and disloyal counsel.”
That message was supplemented by Governor Harding, Chief Justice Waite, and Associate Justice Drake, sending to Congress and recommending for passage, a bill providing that juries be selected by the United States marshal; that the governor be authorized to appoint militia officers, and that the powers of the probate courts be restricted to their proper functions. This so intensified the antagonism of Brigham Young that he issued a call for a meeting at the tabernacle, at which many vindictive and inflammatory speeches were made by the leading members of the Mormon church, and resolutions unanimously adopted condemning said message, and the action of the governor and judges. A committee was also appointed to wait on the governor and judges, and request these officers to resign. A petition to the President of the United States was also drawn up and signed requesting their removal. According to Whitney, the motive which inspired the territorial acts referred to is stated in the second volume of his history, page 551, as follows:
“Doubtless the fear, well-founded it seems, that judges would be sent to the Territory who would use the tribunals over which they presided as engines of oppression, was one of the reasons why the legislat...
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Book Description Cornell University Library, 2009. Paperback. Condition: Brand New. 280 pages. 8.25x5.25x0.70 inches. This item is printed on demand. Seller Inventory # zk1112152776