In late 1866, when Salt Lake City attorney Robert Baskin looked down at the mutilated body of a client, he resolved he would do all in his power to increase federal authority in Utah to ensure that perpetrators of such crimes would not go unpunished. He became the Assistant U.S. Attorney, Salt Lake City mayor, and a Utah Supreme Court justice. Through all this, he was seen as a thorn in the side of the Utah establishment. Even so, readers should appreciate his measured tone and lawyerly objectivity, as well as his graceful prose, indicative of a Harvard education, and his solid documentation intended to convince skeptics. After Reminiscences was published in 1914, Baskin sparred with prominent Mormon writer Orson F. Whitney, who suggested that “doubtless the fear, well-founded it seems, that judges would be sent to Utah as an engine of oppression” was the reason for excesses. Baskin countered, “Yes, without doubt it was ‘fear’ that inspired disloyal acts—fear the federal government would send judges here to execute impartiality as the law of the land.”
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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 legislature clothed the probate courts—whose officers, instead of being sent from abroad, were elected by the people or their representatives—with unusual powers. A similar reason—the fear of conspiring United States attorneys and marshals using their functions to persecute, and not merely to prosecute—may have influenced in part the creation of the offices of territorial attorney general and marshal. A desire to maintain the principle of local self-government, was doubtless the ruling motive.”
Yes, without doubt it was “fear” that inspired these disloyal acts—fear that the federal government would send judges and other officials here to execute impartially the law of the land—the same fear that today inspires the wrongdoer under the shadow of the law. What criminal would not prefer laws and decisions of his own making to those of legally constituted authority? Whitney is right here—if we read between the lines.
It may be well to instance a case in point. The incident following took place in the year 1867:
Isaac Potter, Charles Wilson and John Walker, residing at Coalville, were apostate Mormons. Walker was a boy about nineteen years of age. These three persons had previously been arrested for alleged thefts, and in every instance had been discharged by Judge Snyder, who at the time was probate judge of Summit county. In August of this year, they were again arrested on the charge of having stolen a cow. While they were under guard in the schoolhouse at Coalville, ten persons, armed, appeared about twelve o’clock at night at the building and ordered the prisoners to leave. Upon reaching the street they were placed in single file, a short distance apart, and in each intervening space two of the armed persons placed themselves. The others took positions at the front and rear of the procession thus formed. In this order they marched along the principal street of Coalville, through the mainly inhabited part of the town. Arriving at the outskirts, and their captors continuing to move on, Potter turned around and said to Walker: “John, they are going to murder us! Wouldn’t you like to see your mother before you die?” Thereupon one of the armed men marching behind Potter thrust the muzzle of a shotgun against Potter’s mouth. Potter in terror, shouted “murder!” Whereupon the armed man discharged the gun against the body of Potter at a range so close as to cause his instant death. At the discharge of the gun, both Wilson and Walker broke away and ran for their lives. Wilson was overtaken and killed at the edge of the Weber river. As Walker made his escape, a charge from a shotgun grazed his breast and lacerated his hand and wrist. He was wearing neither coat nor vest, and the charge set his shirt on fire and as he ran he extinguished the fire by the blood from his wounds. He was an athletic youth and soon distanced his pursuers. Although a number of shots were fired at him in the pursuit, he reached the river without further injury, swam across, and thereby escaped assassination. After numerous hardships he succeeded in reaching Camp Douglas, where the commanding officer, upon hearing what had taken place, gave him support and protection.
No steps having been taken by the authorities of Summit county to arrest any of the participants in the homicides mentioned, Judge Titus, whose judicial district included Summit county, upon the affidavit of Walker, issued a warrant for the arrest of the persons accused of the crime. They were arrested, and at the hearing before Judge Titus, at which I was present, what I have here stated respecting the murder of Potter and Wilson and the assault upon Walker, appeared from the testimony of Walker, who was a witness. Several of the residents of Coalville testified that they were awakened by the shots fired, and rushed out to learn the cause of the disturbance; that they saw Potter dead upon the ground, with his throat cut from ear to ear. Walker, when on the witness stand, identified the prisoners severally, and stated what each had done up to the moment Potter was killed. Judge Titus committed the accused to the penitentiary to await the action of the grand jury. John T. D. McAllister, who under the territorial statute before quoted, was the executive officer of the district court, took charge of the prisoners and conducted them in wagons to the penitentiary. Upon arriving there, the prisoners gently lifted the marshal out of the wagon occupied by him and drove away. No effort was made to rearrest them, and a short time afterwards, over the signature of all of them except Arza Hinkley and John C. Livingstone, the following insolent letter appeared in the Salt Lake Daily Telegraph. This newspaper was owned and edited by one Stenhouse, then a zealous member of the Mormon church, but who afterwards apostatized and published a book, and in which he mentioned the murder of Potter and Wilson. The aforesaid letter reads:
“In the Pines, Elk Ranch District, Rocky Mountains,
September 7th, 1867.
“Editor of the Daily Telegraph, and to all whom it may concern:
“After arriving here we thought it due to judge, warden and marshal that they should know the reason for our refusing to accept the proposal of his honor, Judge Titus, to take up our abode in the penitentiary for the period of forty days to await the action of the grand jury then to b...
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