Copyright 1913, by FLEMING H. REVELL COMPANY

CHAPTER 33

THE CRUSADE DEFEATED

WHlLE Brigham was guarding his kingdom from financial subjugation, suppressing temporal and spiritual insurrection among his people, and planting his tithing offices from Canada to Mexico, there was maturing a campaign which was intended to level against him the whole overwhelming might of the United States. Vice-President Colfax, on his second visit to Salt Lake City in 1869, had intimated that such a campaign was imminent. He was urged to stay the government's hand, and wait for the New Movement to reform the church from within. But it was early apparent to all save the Godbeite leaders that this movement was hopeless almost from its beginning, and no more than amusing long before its close. If the "Lion of the Lord" were to be driven from his ecclesiastical jungle, it was clear that the federal government must furnish beaters and station marksmen to bring down the game.

The initial attempt to do this was made by Congress -- it being a standing superstition in our good land that the first thing to do in any emergency is to pass a new law. Drastic bills applying to the Mormon situation were introduced in both houses: in the Senate by Cragin of New Hampshire, in December, 1869; and in the House by Cullom of Illinois a few days later. Cullom's bill passed the House by a decisive vote, which was not influenced in the least by Delegate Hooper's genuinely eloquent plea against it. It was accepted in the Senate by Cragin as a substitute for his own measure, and the fight was thus transferred to that body.

Fortunately for the overmatched Mormon emperor, the Cullom bill lent itself to attack by Brigham's eastern sympathizers. It swept aside nearly every element of local self-government in Utah. It reduced the safeguards of trial by jury very nearly to the vanishing point. In a word, it treated Utah as a conquered but rebellious-minded province, rather than as an embryonic state; and the country was not prepared for such radical measures.

Brigham had no trouble in organizing at home a resistance to the Cullom bill, in which Gentiles, Godbeites, and orthodox Mormons stood side by side. The women of Utah made a special and particular protest. The fact that the territorial legislature had conferred the franchise on women in an act approved February 12, 1870, gave this action extra weight. The influence of railroad and telegraph friends was also called upon. Whether more tangible means of persuasion were used cannot be affirmed -- though some of Brigham's allies and protectors of that day were no more above susceptibility to financial influence than Brigham was above using it. At any rate, the Cullom bill died of wilful neglect, and the kingdom was free from this direct and dangerous menace to its independence.

Little time was allowed for jubilation, however. Before the Cullom bill was formally dead, plans were begun to conquer the defiant Mormon theocracy by the aid of laws already in existence. Like the humorist who cared little who cast the votes so long as he might count them, the government concluded that by appointing the right sort of men to positions in Utah, it might crush Brigham's empire without waiting on legal changes.

Pursuant to this plan, J. Wilson Shaffer was appointed governor of Utah in February, 1870. On June 17 of the same year, James B. McKean was made chief justice of the territory. Both were men of high personal character, and -- what was more important in the present crisis -- both were men of unusual courage and steadfastness. Shaffer was dying of consumption at the time of his appointment, but expressed himself willing to devote the remaining fraction of his life to crushing what he considered the treasonable hierarchy headed by Brigham Young. That hierarchy took a deal more crushing than Governor Shaffer had anticipated; but before his death he had struck one blow at its power. He forbade the assembling of the Nauvoo Legion. The victory was sentimental, rather than practical, since the Legion no longer was able to inflict even serious annoyance on an army of the United States. But it ended a long and tenaciously held tradition, and compelled the dullest zealot to recognize that in a test of physical force his kingdom was helpless in the grasp of the encompassing Republic.

Judge McKean's career in Utah lasted years, instead of the months allotted to Governor Shaffer. Indeed, the history of the territory during those years is composed in large measure of the unceasing struggle between the Mormon monarch and the Methodist chief justice. McKean was brave, earnest, and zealous. His private character was above reproach. His intelligence was high. His learning was by no means slight. But the Mormon wag who first dubbed McKean the "mission jurist" hit the mark with impish accuracy. McKean was in truth a missionary on the bench, a judge who used the law to magnify the gospel. His gospel was one of patriotism, of high civic and domestic ideals; but this does not alter the fact, obvious to the most casual student of the time with which we deal, that McKean stretched his authority to cover every act which he conceived might work an injury to the Mormon kingdom.

By this time the non-Mormon element in the kingdom had grown to appreciable proportions -- approximately it was twenty per cent of Utah's population. It comprised some apostates; many families whose heads had come as federal office-holders; daring merchants, and traders; preachers; professional men, and a small army of railroad builders and operators. It was strengthened, too, and animated by an ever-moving, aggressive host of prospectors and miners, who had smilingly and yet grimly braved Brigham's anathema in order to tap Zion's hills for their treasures of gold and silver. Above the capital still frowned Camp Douglas, a warning to the kingdom and an encourageinent to the invaders. All these were contemptuously classed as "Gentiles," "Outsiders," "Enemies" -- except the handful of seceders from the church, and these were usually called "Damned Apostates" by Brigham's court and subjects.

All these otherwise incongruous elements cohered in a sympathetic fraternity. They learned an enforced solidarity from their dangers as well as the example of the kingdom.

Best of all, these Outsiders soon had a great newspaper, the Salt Lake Tribune. Started by liberal Mormons and apostates as a protest from within the ranks of Mormons, it soon passed under the control of Gentiles -- talented and trained newspaper men who took a fierce joy in baiting the "Lion of the Lord." Nowhere in the world has a more brilliant battle been made for freedom of speech. It was too late and Brigham did not feel inclined to copy Joseph's fatal mistake of suppressing an American newspaper "by order of the king." So the Tribune fought, and flourished by fighting. It was an act of faith for Gentiles to support it; and thousands of Mormons read it on the sly, "just to see what the damned thing said."

In resisting the crusade now launched against them, the Mormons had three important breastworks. Comprising an immense majority of the population of Utah, they were sure of controlling any jury drawn in ordinary fashion. The probate courts of the territory -- of course entirely subject to the kingdom -- had been vested with extensive civil and criminal jurisdiction, conflicting, in many cases, with that assumed by the district courts whose judges were named by the President. To clinch this control of judicial machinery, there was a territorial marshal, who made out the venire from which jurymen were drawn; and an attorney-general, who was held the proper officer to prosecute all cases arising under territorial law. So long as these defences remained intact, the kingdom was safe.

The first care of the crusaders -- if we may borrow this term which the Mormons applied to judge McKean, his associates, and their supporters -- was to beat down the judicial bulwarks of the kingdom. The earliest movement in this direction was begun before McKean reached the territory, but it did not reach final adjudication until he was present. In September, 1870, judge Strickland, associate judge with McKean and Hawley, denied the jurisdiction of probate courts in criminal cases; and the next month judge Hawley, in a more sweeping decision, practically restricted these local courts to the proving of wills and the administering of estates. The first defence of the Mormon kingdom was down.

The other barriers did not last long. On August 27, 1870, a saloon belonging to one Englebrecht was raided by the territorial marshal and the Salt Lake City chief of police, and its stock of liquors poured into the gutter. The proceeding was a regular one according to territorial law; but the marshal and his aids were arrested, and bound over to await action by the grand jury. At the term of court beginning September 19, 1870, judge McKean decided that courts presided over by federal judges were not subject to territorial law in the drawing of juries, that they were in effect United States courts, rather than territorial courts. The grand jury thus drawn in defiance of Utah law indicted the Mormon officials concerned in raiding the saloon; and on November 4 of the same year a trial jury drawn in the same fashion gave a verdict in favour of the saloon owners and against the marshal and his aids for $59,063.25. The case was promptly appealed to the higher federal courts. We shall meet it again later.

Judge McKean's decision in this case practically superseded the territorial marshal and attorney-general by the United States marshal and district attorney. If any shred of doubt had remained, however, it was set at rest the following spring. Two quo warranto suits had been brought to settle this point. In March, 1871, judge McKean and his associates ruled that the territorial marshal and attorney-general had no place in the district courts of the territory, the only courts left having any jurisdiction worth naming. Juries in these courts were to be drawn by the United States marshal, in blissful disregard of territorial law, and cases were to be prosecuted by the United States district attorney.

With federal appointees holding the sole power to empanel juries, prosecute cases, and render decisions, the crusade had at least a favourable start. But it was checked for a time by an unexpected obstacle. The Mormon legislature of Utah took the very human view that if the district courts of the territory were United States courts, as judge McKean had affirmed, then the United States might pay for their maintenance. Acting on this theory, the legislature failed to make an appropriation to carry on the work in these courts. When the grand jury and petit jurors were drawn for the March term, 1871, judge McKean explained to them that he was obliged to send them home, because no money had been provided for their per diem allowance, not even for their board. He commented on this as a proof of the disloyalty of the legislature. Some of his language is worthy of quotation

"Gentlemen of the grand and petit juries, I am a federal official in Utah. I apologize to nobody for being here; I shall stay here as long as I choose, or so long as the government at Washington shall choose to have me here; and I venture the prediction that the day is not far in the future when the disloyal high priesthood of the so-called Church of Jesus Christ of Latter Day Saints shall bow to and obey the laws that are elsewhere respected, or else those laws will grind them to powder."

One may grant the accuracy of McKean's description of the Mormon high priesthood without admitting his judicial right to so characterize them at such a time. The whole point and purpose of the crusade thus momentarily halted was to bring Brigham and his aids into court. Even if it had been fair for the judge before whom they must come to brand them in advance as disloyal and traitorous, it certainly was not sagacious to deliver such premature judgment from the bench to men who had been drawn as jurors once, and might be so drawn again.

But the check thus given the crusaders was temporary -- as McKean had predicted it would be. After some delay and a fruitless application to Washington, funds for such prosecutions as were deemed desirable were advanced by the United States marshal, Colonel Patrick, and the business of "using up Brigham" went forward once more.

One small barricade, however, remained to the afflicted Saints; and this was now to be stormed. The warden of the territorial penitentiary was a Mormon --of course. On August 2, 1871, Colonel Patrick, as United States marshal, took possession of this penal institution under authority of a law passed the preceding January, which perhaps applied to the case, and perhaps did not. The Mormon warden yielded under protest, but he yielded. Preparations for the grand attack on the citadel of theocracy were now complete. From the serving of a warrant to the indiction of capital punishment, every process of law was in the hands of men who deemed it a duty and a pleasure to humble the Mormon monarch, and scatter his adoring court.

There was no delay in making the assault. At the September term of court, 1871, only seven Mormons were included in the jury list. Each of these declared that he believed that plural marriage was practiced in accordance with a revelation from God, and that if he had to choose between sustaining the revelation and upholding the law, the law would have to fall. They were excused from service. A grand jury composed entirely of Gentiles indicted Brigham for "lewd and lascivious cohabitation." The warrant was served on him October 2, 1871.

The law under which these indictments were found was a territorial one, passed by the Mormons themselves. It never was intended to apply to plural marriage, but was designed to check irregular unions which had no sanction of either church or state. However illegal, a polygamous marriage was still a marriage; it was a union recognized by society, and one which in general was faithfully observed by both parties to the contract. Yet it was now proposed to define Brigham's plural marriages as "lewd and lascivious cohabitation," and punish him under a law which he as governor had signed. Such legal construction is permissible in comic opera and historical fiction, but hardly in sober fact in a country where the manifest intent of the law-makers is of vital import in determining the application of a statute.

Even more objectionable to the Mormons than this effort to punish polygamy without naming it, was the language held by Judge McKean. When the warrant was served Brigham was confined at home by illness. A week later he appeared in court, and his attorney moved to quash the indictment, pointing out that it had been returned by a jury summoned in defiance of Utah law, and making other objections. McKean denied this motion in an address of which the following is a part.

"Let the counsel on both sides, and the court also keep constantly in mind the uncommon character of this case. The supreme court of California has well said: 'Courts are bound to take notice of the political and social condition of the country which they judicially rule.' It is therefore proper to say that while the case at bar is called, 'The People versus Brigham Young,' its other and real title is 'Federal Authority versus Polygamic Theocracy.' The government of the United States, founded upon a written constitution, finds within its jurisdiction another government claiming to come from God -- imperium in imperio -- whose policy and practices are, in grave particulars, at variance with its own. The one government arrests the other, in the person of its chief, and arraigns it at this bar. A system is on trial in the person of Brigham Young. Let all concerned keep this fact constantly in view; and let that government rule without a rival which shall prove to be in the right."

Unjudicial zeal has seldom scaled loftier heights than that reached in these words of judge McKean. As the case stood after the judge's ruling, Brigham was indicted for lewd cohabitation that he might be tried for polygamy and punished for treason; yet the prisoner and his counsel were gravely bidden to observe and admire the "uncommon" character of the net in which they found themselves entangled. As well might Luther, after nailing his theses to the church door, have been cited before the Pope on a charge of disorderly conduct, tried for defacing church property -- and sentenced as a heretic. Brigham's lawyers filed an exception to the judge's language, but that was the most they were permitted to do.

This was only the initial stroke. Several of Brigham's most devoted followers were indicted for the same offence. Indictments were found against Brigham, Daniel H. Wells, and several others for murder, in connection with the killing of Richard Yates during the "Mormon war." Still further indictments were returned against another group of Saints -- always including Brigham, however -- for the murder of the Aiken party in the spring of 1857. Thomas Hawkins was tried for adultery -- this being another of judge McKean's definitions of plural marriage convicted, and sentenced to three years' imprisonment on October 20. Informers multiplied in the land, telling tales which always found ready credence if they were sufficiently bloody and applied to persons sufficiently high in the kingdom. It seemed as if the "mission jurist" were in a fair way to crush those whom he could not convert. Brigham met these multiplied attacks with a steady courage which must have aroused the admiration of his enemies. His bluff and bluster dropped from him like a discarded cloak; and he faced his prosecutors, cool, watchful, determined -- more of a king in his hour of distress than in all the years of his unchallenged supremacy. Not for an instant did he lose his head. Not for a moment did he allow the fer- ???? your of his people to escape bounds. It would have been easy for him to arouse an emeute among his devoted followers; doubtless also it would have been easy for him to escape from the country, and live a life of ease outside the "persecuting" Republic. Brigham would have none of either riot or flight. He would neither retreat before the overwhelming might of the nation, nor suffer his worshipping followers to fling themselves against its bayonets.

Up to this time, the crusaders had carried everything before them; but now, in an hour, the weapons were struck from their hands. It will be remembered that in the Engelbrecht case, judge McKean had declared his court a United States tribunal, rather than a territorial one; had disregarded local law in drawing a jury; and had rendered a heavy judgment against the Mormon officials who had poured Engelbrecht's liquors into the gutter. The officials thus mulcted carried their case to the Supreme Court of the United States -- doubtless with money supplied from the tithing fund. On April 15, 1872, the Supreme Court rendered a decision freeing the officials of the judgment against them, and wrecking McKean's carefully planned campaign. For the supreme justices unanimously agreed that the district courts of Utah were territorial courts; that juries must be drawn in accordance with territorial law, and that the district attorney and United States marshal appointed by the President must confine their activities to cases arising under the laws and constitution of the United States.

It was a crushing defeat for the crusaders. In their zeal to end a regime which they believed both reasonable and immoral, they had made the world-old blunder of straining the law; and they were dealing with an antagonist strong enough and clever enough to take advantage of every such slip. All indictments found by what may be called the McKean process were quashed at once; and the Mormon kingdom regained at a stroke nearly everything which a two years' crusade had cost.

Most men in Brigham's position would have celebrated such a triumph by offers of conciliation, would have avoided giving further offence to the all-powerful Republic. Not so the "Lion of the Lord." He had been hounded for polygamy. Very well, he would let the nation know that he held fast to that distasteful doctrine. At the election of 1872, William H. Hooper was notified that he need no longer serve as delegate in Congress, and George Q. Cannon was sent in his place. Hooper was a monogamist. Cannon was a polygamist; an Apostle, a hierarch, and a special counsellor to Brigham. Of all the younger generation then coming forward, Cannon was foremost in the regard of both people and prophet in the Mormon kingdom. His selection as delegate was a flat defiance of the United States government to do its worst; a notification that the kingdom would treat with the Republic only on terms of substantial equality. There was a time, we believe, when Brigham might have been induced to trade polygamy for statehood. There never was a moment when he was ready to surrender polygamy to a crusade. He was always willing to barter -- and few indeed were the objects excluded from his list of trading stock. But surrender he would not.

Not yet, however, was ended the long duel between Brigham and Judge McKean. Chance for a time gave the jurist new weapons in place of those he had lost. Some years earlier, the father of Ann Eliza Webb, a dashing divorcee, urged her in marriage upon Brigham Young. Neither Brigham nor the young woman at first inclined to the arrangement. The prophet was approaching old age, he was burdened with imperial cares, he had already unnumbered consorts, several of whom were young and beautiful; and Sister Webb had no devout leanings to polygamy. But the duty to see that every lovely woman shall get to heaven was too much for Brigham's reluctance; and "Ann Eliza'' -- as she was called throughout the realm -- was induced to yield under paternal persuasion and the hint that her fascinations would soon win the place of favorite in the prophet's harem. The marriage was solemnized April 6, 1868 --celebrating the anniversary of the founding of the church; and all Zion stood agape with respectful curiosity to see whether "Ann Eliza" could supplant "Amelia (Folsom) -- the statuesque, cold, childless beauty -- who had reigned as the prophet's favourite for six years. Brigham had been multifarious, but not usually fickle in his loves; and to Amelia he continued his unwavering devotion. Ann Eliza soon dropped from the role of ordinary wife to that of neglected wife; and finally, July 28, 1873, she sued Brigham for divorce, and demanded a substantial share of his fortune.

It is necessary to pause here for a moment to repeat a caution given several times before. Ann Eliza Webb posed as Brigham's nineteenth wife, and custom has fixed that as her number. There is just as good warrant for calling her the twenty-ninth, or the hundred and nineteenth. At the time of her marriage there were known to be eighteen other women with whom Brigham had sustained or was sustaining marital relations. Careful search probably would have doubled the number, and not even Brigham could have told to how many women he had been "sealed." The marriage ceremony was sufficient to cover cohabitation in every case; and no domestic census-taker could have drawn the line between the three sorts of spouses.

Brigham's answer to this divorce suit was a bit startling. He pleaded that there was no marriage between himself and the plaintiff which the laws of the United States recognized; and therefore, there was no occasion for divorce. Judge McKean was plainly embarrassed by the situation, yet quite as plainly determined to use it to the injury of the Mormon emperor. On February 25, 1875, McKean ordered Brigham to pay Ann Eliza $3,000 for attorney's fees and $500 per month alimony pending a final decision. Brigham's attorneys took an exception, and prepared to appeal to the supreme court of the territory. The delay thus occasioned did not suit judge McKean. On March 8, he cited Brigham to appear before him, and show cause why he should not be punished for contempt of court in not having paid the required money.

Brigham appeared in court three days later, and after a short argument by his attorneys, was sentenced to pay a fine of $25 and to be confined one day in the penitentiary. He was taken to his home by the deputy marshal, and after dining and being supplied with some clothing, was driven to the jail. Here, he was locked for a short time in a cell, and then allowed to pass the night in a room opening off the warden's office. The following day, March 12, 1875, he walked out free, into the arms of a worshipping crowd who had assembled to do him homage.

McKean had made a fatal blunder at last. The animus of his sentence for contempt was too clear to be doubted or disguised, and almost as bad was the sanction he had given to polygamy by his award of alimony. The Poland bill, signed by President Grant nearly a year before, permitted a judge to grant alimony to a woman who sued to have a marriage declared void because of a previous marriage. But Ann Eliza was suing, not to have a marriage annulled, but to get a divorce; she made no plea of ignorance to gloze her relations with Brigham, and the grant of alimony was practically a recognition of polygamous marriages as legal unions, to be dissolved only by formal divorce. Four days after Brigham left the prison, a telegram arrived in Salt Lake City, stating that McKean had been removed from the bench, and that a successor was on the way.

The removal of judge McKean was perhaps the greatest of Brigham's later victories. Certainly it was the one which gave him most unalloyed pleasure, and his people the strongest assurance of Divine protection for their prophet and his rule. The Ann Eliza suit still dragged on without coming to trial, but no one doubted how it would end. Brigham was for some time in the custody of the United States marshal, but never again was he required to spend a night in jail. The "Lion of the Lord" had once more baffled the wiles of the hunters, and those who annoyed him had been removed from his path. No faithful Mormon questioned that the Divine guardianship thus made manifest would endure to the end.

Brigham's mastery had not lessened during the years when he was so closely assailed. In 1874, his fortunes were perhaps at the lowest ebb they had reached since the Supreme Court had freed him from a criminal prosecution for polygamy. On June 23d of that year, President Grant signed the Poland bill, a measure which did by congressional act much that judge McKean had sought to do by judicial construction. It deprived the probate courts of Utah of their extensive jurisdiction, and gave large powers to federal officials in pursuing polygamy. Such a law, interpreted by judge McKean, was calculated to make almost any man doubt the temporal benefits of plural marriage; and meantime, that implacable Puritan, McKean, had control of the divorce suit against the Mormon emperor. But even under such circumstances, Brigham would not yield an inch. Apostle George Q. Cannon was once more named for delegate to Congress. Election riots in Salt Lake City that year were of a serious character; and in the Tooele district, some Gentile miners introduced the latest devices in ballot-box stuffing, but all in vain. Delegate Cannon went back to Congress, to represent, not a territory, but a kingdom; not a constituency, but a prince; and to stand as a living example of that prince's defiance of the laws and customs of the Republic.

Brigham came out from his single day of imprisonment March 12, 1875. Exactly four months later, John D. Lee was brought to trial for the first time for the Mountain Meadows horror. The federal officials had worked up their case until they felt certain, not only of convicting Lee, but of implicating the higher officials of the church, including Brigham himself. They presented their case with skill and energy -- and the jury promptly disagreed. The word of the "brethren" had been passed to all prospective jurors, and it reached those who sat in the box. Lee was not to be convicted until the federal authorities should abandon their effort to connect the head of the church with the massacre at Mountain Meadows.

By this time, Gentile officials were learning something of the tenacity of Brigham's control. When Lee's second trial came in September, 1876, the United States district attorney took pains to make it clear that he was prosecuting only the man before him in the dock, and had no wish, desire, or expectation of obtaining evidence against the high and holy men whom Providence had put in control of Utah affairs -- and whom all efforts of the United States government had failed to put out of control. The result of this frank offer of compromise was gratifying. Lee was convicted, as he deserved to be; and on March 23, 1877, under direction of Colonel William Nelson, the United States marshal, he was shot at the scene of his frightful crime. Lee maintained, and with some justice, that he was thrown to the wolves as a sacrifice; but assuredly, no sacrifice was ever less deserving of sympathy.

On April 20, 1877, the long-drawn divorce case came to a sudden ending. Judge Schaeffer, before whom the trial was joined, ruled that Ann Eliza Webb never had been legally married to Brigham Young, and therefore did not need and could not get a divorce from him. All orders for alimony were cancelled, but the judge rather illogically assessed the costs against the defendant. The cause celebre had dragged on for four years; it had sold many books, piled up large lecture receipts, inspired countless editorials and sermons, and broken a United States judge. But it had not broken the man it was designed to ruin. Its ending, taken in connection with the failure of prosecutions for polygamy, was virtually a confession that the federal government could neither protect the plural wife nor punish the polygamous husband. Brigham might consider the time and money well spent which procured such a certificate from such a source.

His kingdom seemed to be acknowledged of man as well as "ordained of God."