CHAPTER XXI.
The Last Years Of Brigham Young 

New Governors-- Shaffer's Rebuke to the Nauvoo Legion--Conflict with the New Judges--Brigham Young and Others indicted--Young's Temporary Imprisonment--A Supreme Court Decision in Favor of the Mormon Marshal and Attorney--Outside Influences affecting Utah Affairs-- Grant's Special Message to Congress--Failure of the Frelinghuysen Bill in the House--Signing of the Poland Bill--Ann Eliza Young's Suit for Divorce--The Later Governors

    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 o f 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."¹

    ¹ 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.² 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.

    ² 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."³ This was a great victory for the Mormons.

    ³ 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."⁴

    ⁴ 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."⁵

    ⁵ 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 politic alone. 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,⁶ 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.

    ⁶ 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.⁷

    ⁷ 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.