As early as 1853 intimations of the doctrine that an offending member might be put out of the way were given from the Tabernacle pulpit. Orson Hyde, on April 9 of that year, spoke, in the form of a parable, of the fate of a wolf that a shepherd discovered in his flock of sheep, saying that, if let alone, he would go off and tell the other wolves, and they would come in; "whereas, if the first should meet with his just deserts, he could not go back and tell the rest of his hungry tribe to come and feast themselves on the flock. If you say the priesthood, or authorities of the church here, are the shepherd, and the church is the flock, you can make your own application of this figure."
In September, 1856, there was a notable service in the bowery in Salt Lake City at which several addresses were made. Heber C. Kimball urged repentance, and told the people that Brigham Young's word was "the word of God to this people." Then Jedediah M. Grant first gave open utterance to a doctrine that has given the Saints, in late years, much trouble to explain, and the carrying out of which in Brigham Young's days has required many a Mormon denial. This is, what has been called in Utah the doctrine of "blood atonement," and what in reality was the doctrine of human sacrifice.
Grant declared that some persons who had received the priesthood committed adultery and other abominations, "get drunk, and wallow in the mire and filth." "I say," he continued, "there are men and women that I would advise to go to the President immediately, and ask him to appoint a committee to attend to their case; and then let a place be selected, and let that committee shed their blood. We have those amongst us that are full of all manner of abominations; those who need to have their blood shed, for water will not do; their sins are too deep for that."* He explained that he was only preaching the doctrine of St. Paul, and continued: "I would ask how many covenant breakers there are in this city and in this kingdom. I believe that there are a great many; and if they are covenant breakers, we need a place designated where we can shed their blood.... If any of you ask, Do I mean you, I answer yes. If any woman asks, Do I mean her, I answer yes.... We have been trying long enough with these people, and I go in for letting the sword of the Almighty be unsheathed, not only in word, but in deed."**
Elder Hyde, in his "Mormonism," says (p. 179): "There are several men now living in Utah whose lives are forfeited by Mormon law, but spared for a little time by Mormon policy. They are certain to be killed, and they know it. They are only allowed to live while they add weight and influence to Mormonism, and, although abundant opportunities are given them for escape, they prefer to remain. So strongly are they infatuated with their religion that they think their salvation depends on their continued obedience, and their 'blood being shed by the servants of God.' Adultery is punished by death, and it is taught, unless the adulterer's blood be shed, he can have no remission for this sin. Believing this firmly, there are men who have confessed this crime to Brigham, and asked him to have them killed. Their superstitious fears make life a burden to them, and they would commit suicide were not that also a crime."
Brigham Young, who followed Grant, said that he would explain how judgment would be "laid to the line." "There are sins," he explained, "that men commit, for which they cannot receive forgiveness in this world nor in that which is to come; and, if they had their eyes open to see their true condition, they would be perfectly willing to have their blood spilt upon the ground, that the smoke thereof might ascend to heaven for their sins...I know, when you hear my brethren telling about cutting people off from the earth, that you consider it a strong doctrine; but it is to save them, not to destroy them."
That these were not the mere expressions of a sudden impulse is shown by the fact that Young expounded this doctrine at even greater length a year later. Explaining what Christ meant by loving our neighbors as ourselves, he said: "Will you love your brothers and sisters likewise when they have committed a sin that cannot be atoned for without the shedding of blood? Will you love that man or woman well enough to shed their blood? That is what Jesus Christ meant.... I have seen scores and hundreds of people for whom there would have been a chance (in the last resurrection there will be) if their lives had been taken, and their blood spilled on the ground as a smoking incense to the Almighty, but who are now angels to the devil."*
Stenhouse relates, as one of the "few notable cases that have properly illustrated the blood atonement doctrine," that one of the wives of an elder who was sent on a mission broke her marriage vows during his absence. On his return, during the height of the "Reformation," she was told that "she could not reach the circle of the gods and goddesses unless her blood was shed," and she consented to accept the punishment. Seating herself, therefore, on her husband's knee, she gave him a last kiss, and he then drew a knife across her throat. "That kind and loving husband still lives near Salt Lake City (1874), and preaches occasionally with great zeal."*
John D. Lee, who says that this doctrine was "justified by all the people," gives full particulars of another instance. Among the Danish converts in Utah was Rosmos Anderson, whose wife had been a widow with a grown daughter. Anderson desired to marry his step-daughter also, and she was quite willing; but a member of the Bishop's council wanted the girl for his wife, and he was influential enough to prevent Anderson from getting the necessary consent from the head of the church. Knowing the professed horror of the church toward the crime of adultery, Anderson and the young woman, at one of the meetings during the "Reformation," confessed their guilt of that crime, thinking that in this way they would secure permission to marry. But, while they were admitted to rebaptism on their confession, the coveted permit was not issued and they were notified that to offend would be to incur death. Such a charge was very soon laid against Anderson (not against the girl), and the same council, without hearing him, decided that he must die. Anderson was so firm in the Mormon faith that he made no remonstrance, simply asking half a day for preparation. His wife provided clean clothes for the sacrifice, and his executioners dug his grave. At midnight they called for him, and, taking him to the place, allowed him to kneel by the grave and pray. Then they cut his throat, "and held him so that his blood ran into the grave." His wife, obeying instructions, announced that he had gone to California.*
As an illustration of the opportunity which these times gave a polygamous priesthood to indulge their tastes, may be told the story of "the affair at San Pete." Bishop Warren Snow of Manti, San Pete County, although the husband of several wives, desired to add to his list a good-looking young woman in that town When he proposed to her, she declined the honor, informing him that she was engaged to a younger man. The Bishop argued with her on the ground of her duty, offering to have her lover sent on a mission, but in vain. When even the girl's parents failed to gain her consent, Snow directed the local church authorities to command the young man to give her up. Finding him equally obstinate, he was one evening summoned to attend a meeting where only trusted members were present. Suddenly the lights were put out, he was beaten and tied to a bench, and Bishop Snow himself castrated him with a bowie knife. In this condition he was left to crawl to some haystacks, where he lay until discovered "The young man regained his health," says Lee, "but has been an idiot or quiet lunatic ever since, and is well known by hundreds of Mormons or Gentiles in Utah."* And the Bishop married the girl. Lee gives Young credit for being very "mad" when he learned of this incident, but the Bishop was not even deposed.**
In March, 1851, the two houses of the legislature of Deseret, sitting together, adopted resolutions "cheerfully and cordially" accepting the law providing a territorial government for Utah, and tendering Union Square in Salt Lake City as a site for the government buildings. The first territorial election was held on August 4, and the legislative assembly then elected held its first meeting on September 22. An act was at once passed continuing in force the laws passed by the legislature of Deseret (an unauthorized body) not in conflict with the territorial law, and locating the capital in the Pauvan Valley, where the town was afterward named Fillmore* and the county Millard, in honor of the President.
The federal law, establishing the territory, provided that the governor, secretary, chief justice and two associate justices of the Supreme Court, the attorney general, or state's attorney, and marshal should be appointed by the President of the United States. President Fillmore on September 22, 1850, filled these places as follows: governor, Brigham Young; secretary, B. D. Harris of Vermont; chief justice, Joseph Buffington of Pennsylvania; associate justices, Perry E. Brocchus and Zerubbabel Snow; attorney general, Seth M. Blair of Utah; marshal, J. L. Heywood of Utah, Young, Snow, Blair, and Heywood being Mormons. L. G. Brandebury was later appointed chief justice, Mr. Buffington declining that office.
The selection of Brigham Young as governor made him, in addition to his church offices, ex-officio commander-in-chief of the militia and superintendent of Indian affairs, the latter giving him a salary of $1000 a year in addition to his salary of $1500 as governor. Had the character of the Mormon church government been understood by President Fillmore, it does not seem possible that he would, by Young's appointment, have so completely united the civil and religious authority of the territory in one man; or, if he had had any comprehension of Young's personal characteristics, it is fair to conclude that the appointment would not have been made.
The voice which the President listened to in the matter was that of that adroit Mormon agent, Colonel Thomas L. Kane. Kane's part in the business came out after these appointments were announced, and after the Buffalo (New York) Courier had printed a communication attacking Young's character on the ground of his record both in Illinois and Utah. President Fillmore sent these charges to Kane (on July 4, 1851) with a letter in which he said, "You will recollect that I relied much upon you for the moral character of Mr. Young," and asking him to "truly state whether these charges against the moral character of Governor Young are true." Kane sent two letters in reply, dated July 11. In a short open one he said: "I reiterate without reserve the statement of his excellent capacity, energy, and integrity, which I made you prior to the appointment. I am willing to say that I VOLUNTEERED to communicate to you the facts by which I was convinced of his patriotism and devotion to the Union. I made no qualification when I assured you of his irreproachable moral character, because I was able to speak of this from my own intimate personal knowledge."
The second letter, marked "personal," went into these matters much more in detail. It declared that the tax levied by Young on non-Mormons who sold goods in Salt Lake City was a liquor tax, creditable to Mormon temperance principles. Had the President consulted the report of the debate on Babbitt's admission as a Delegate, he would have discovered that this was falsehood number one. The charges against Young while in Illinois, including counterfeiting, Kane swept aside as "a mere rehash of old libels," and he cited the Battalion as an illustration of Mormon patriotism. The extent to which he could go in falsifying in Young's behalf is illustrated, however, most pointedly in what he had to say regarding the charge of polygamy: "The remaining charge connects itself with that unmixed outrage, the spiritual wife story; which was fastened on the Mormons by a poor ribald scamp whom, though the sole surviving brother and representative of their Jo. Smith, they were literally forced to excommunicate for licentiousness, and who therefore revenged himself by editing confessions and disclosures of savor to please the public that peruses novels in yellow paper covers."* In regard to William Smith, the fact was that he opposed polygamy both before and after his expulsion from the church. Kane's stay among the Mormons on the Missouri must have acquainted him with the practically open practice of polygamy at that time. His entire correspondence with Fillmore stamps him as a man whose word could be accepted on no subject. It would have been well if President Buchanan had availed himself of the existence of these letters. Fillmore stated in later years that at that time neither he nor the Senate knew that polygamy was an accepted Mormon doctrine.
Young took the oath of office as governor in February, 1851. The non-Mormon federal officers arrived in June and July following, and with them came Babbitt, bringing $20,000 which had been appropriated by Congress for a state-house, and J. M. Bernhisel, the first territorial Delegate to Congress, with a library purchased by him in the East for which Congress had provided. The arrival of the Gentile officers gave a speedy opportunity to test the temper of the church in regard to any interference with, or even discussion of, their "peculiar" institutions or Young's authority.
Their first welcome was cordial, with balls and dinners at the Bath House at the Hot Springs at which, for their special benefit, says a local historian, was served "champagne wine from the grocery," with home-brewed porter and ale for the rest. When Judge Brocchus reached Salt Lake City, his two non-Mormon associates had been there long enough to form an opinion of the Mormon population and of the aims of the leading church officers. They soon concluded that "no man else could govern them against Brigham Young's influence, without a military force,"* and they heard many expressions, public and private, indicating the contempt in which the federal government was held. The anniversary of the arrival of the pioneers, July 24, was always celebrated with much ceremony, and that year the principal addresses were made by "General" D. H. Wells and Brigham Young. Some of the new officers occupied seats on the platform. Wells attacked the government for "requiring" the Battalion to enlist. Young paid especial attention to President Taylor, who had recently died, and whose course toward the Mormons did not please them, closing this part of his remarks with the declaration, "but Zachary Taylor is dead and in hell, and I am glad of it," adding, "and I prophesy in the name of Jesus Christ, by the power of the priesthood that's upon me, that any President of the United States who lifts his finger against this people, shall die an untimely death, and go to hell."
Judge Brocchus had been commissioned by the Washington Monument Association to ask the people of the territory for a block of stone for that structure, and, on signifying a desire to make known his commission, he was invited to do so at the General Conference to be held on September 7 and 8. The judge thought that, with the life of Washington as a text, he could read these people a lesson on their duty toward the government, and could correct some of the impressions under which they rested. The idea itself only showed how little he understood anything pertaining to Mormonism.
There was no newspaper in Salt Lake City in that time, and for a report of the judge's address and of Brigham Young's reply, we must rely on the report of the three federal officers to President Fillmore, on a letter from Judge Brocchus printed in the East, and on three letters on the subject addressed to the New York Herald (one of which that journal printed, and all of which the author published in a pamphlet entitled "The Truth for the Mormons",) by J. M. Grant, first mayor of Salt Lake City, major general of the Legion, and Speaker of the house in the Deseret legislature.
Judge Brocchus spoke for two hours. He began with expressions of sympathy for the sufferings of the Mormons in Missouri and Illinois, and then referred to the unfriendliness of the people toward the federal government, pointing out what he considered its injustice, and alluding pointedly to Brigham Young's remarks about President Taylor. He defended the President's memory, and told his audience that, "if they could not offer a block of marble for the Washington Monument in a feeling of full fellowship with the people of the United States, as brethren and fellow citizens, they had better not offer it at all, but leave it unquarried in the bosom of its native mountain." The officers' report to President Fillmore says that the address "was entirely free from any allusions, even the most remote, to the peculiar religion of the community, or to any of their domestic or social customs." Even if the Mormons had so construed it, the rebuke of their lack of patriotism would have aroused their resentment, and Bernhisel, in a letter to President Fillmore, characterized it as "a wanton insult."
But the judge did make, according to other reports, what was construed as an uncomplimentary reference to polygamy, and this stirred the church into a tumult of anger and indignation. According to Mormon accounts,* the judge, addressing the ladies, said: "I have a commission from the Washington Monument Association, to ask of you a block of marble, as a test of your citizenship and loyalty to the government of the United States. But in order to do it acceptably you must become virtuous, and teach your daughters to become virtuous, or your offering had better remain in the bosom of your native mountains."
Mild as this language may seem, no Mormon audience, since the marrying of more wives than one had been sanctioned by the church, had ever listened to anything like it. To permit even this interference with their "religious belief" was entirely foreign to Young's purpose, and he took the floor in a towering rage to reply. "Are you a judge," he asked, "and can't even talk like a lawyer or a politician?" George Washington was first in war, but he was first in peace, too, and Young could handle a sword as well as Washington. "But you [addressing the judge] standing there, white and shaking now at the howls which you have stirred up yourself—you are a coward.... Old General Taylor, what was he?* A mere soldier with regular army buttons on; no better to go at the head of brave troops than a dozen I could pick out between here and Laramie." He concluded thus:—
"What you have been afraid to intimate about our morals I will not stoop to notice, except to make my particular personal request to every brother and husband present not to give you back what such impudence deserves. You talk of things you have on hearsay since your coming among us. I'll talk of hearsay then—the hearsay that you are discontented, and will go home, because we cannot make it worth your while to stay. What it would satisfy you to get out of us I think it would be hard to tell; but I am sure that it is more than you'll get. If you or any one else is such a baby-calf, we must sugar your soap to coax you to wash yourself of Saturday nights. Go home to your mammy straight away, and the sooner the better."
This was the language addressed by the governor of the territory and the head of the church, to one of the Supreme Court judges appointed by the President of the United States!
Young alluded to his reference to the judge's personal safety in a discourse on June 19, 1853, in which, speaking of the judge's remarks, he said: "They [the Mormons] bore the insult like saints of God. It is true, as it was said in the report of these affairs, if I had crooked my little finger, he would have been used up, but I did not bend it. If I had, the sisters alone felt indignant enough to have chopped him in pieces." A little later, in the same discourse, he added: "Every man that comes to impose on this people, no matter by whom they are sent, or who they are that are sent, lay the axe at the root of the tree to kill themselves. I will do as I said I would last conference. Apostates, or men who never made any profession of religion, had better be careful how they come here, lest I should bend my little finger."*
If the records of the Mormon church had included acts as well as words, how many times would we find that Young's little finger was bent to a purpose?
Bold as he was, Young seems to have felt that he had gone too far in his abuse of Judge Brocchus, and on September 19 he addressed a note to him, inviting him to attend a public meeting in the bowery the next Sunday morning, "to explain, satisfy, or apologize to the satisfaction of the ladies who heard your address on the 8th," a postscript assuring the judge that "no gentleman will be permitted to make any reply." The judge in polite terms declined this offer, saying that he had been, at the proper time, denied a chance to explain, "at the peril of having my hair pulled or my throat cut." He added that his speech was deliberately prepared, that his sole design was "to vindicate the government of the United States from those feelings of prejudice and that spirit of defection which seemed to pervade the public sentiment," and that he had had no intention to offer insult or disrespect to his audience. This called out, the next day, a very long reply from Young, of which the following is a paragraph: "With a war of words on party politics, factions, religious schisms, current controversy of creeds, policy of clans or state clipper cliques, I have nothing to do; but when the eternal principles of truth are falsified, and light is turned into darkness by mystification of language or a false delineation of facts, so that the just indignation of the true, virtuous, upright citizens of the commonwealth is aroused into vigilance for the dear-bought liberties of themselves and fathers, and that spirit of intolerance and persecution which has driven this people time and time again from their peaceful homes, manifests itself in the flippancy of rhetoric for female insult and desecration, it is time that I forbear to hold my peace, lest the thundering anathemas of nations, born and unborn, should rest upon my head, when the marrow of my bones shall be ill prepared to sustain the threatened blow."*
Judge Brocchus wrote to a friend in the East, on September 20: "How it will end, I do not know. I have just learned that I have been denounced, together with the government and officers, in the bowery again to-day by Governor Young. I hope I shall get off safely. God only knows. I am in the power of a desperate and murderous sect."
The non-Mormon federal officers now announced their determination to abandon their places and return to the East. Young foresaw that so radical a course would give his conduct a wide advertisement, and attract to him an unpleasant notoriety. He, therefore, called on the offended judges personally, and urged them to remain.* Being assured that they would not reconsider their determination, and that Secretary Harris would take with him the $24,000 appropriated for the pay and mileage of the territorial legislature, Young, on September 18, issued a proclamation declaring the result of the election of August 4, which he had neglected to do, and convening the legislature in session on September 22. "So solicitous was the governor that the secretary and other non-Mormon officers should be kept in ignorance of this step," says the report of the latter to President Fillmore, "that on the 19th, two days after the date of a personal notice sent to members, he most positively and emphatically denied, as communicated to the secretary, that any such notice had been issued."
As soon as the legislature met, it passed resolutions directing the United States marshal to take possession of all papers and property (including money) in the hands of Secretary Harris, and to arrest him and lock him up if he offered any resistance. On receipt of a copy of this resolution, Secretary Harris sent a reply, giving several reasons for refusing to hand over the money appropriated for the legislature, among them the failure of the governor to have a census taken before the election, as provided by the territorial act, the defective character of the governor's proclamation ordering the election, allowing aliens to vote, and the governor's failure to declare the result of the election, his delayed proclamation being pronounced "worthless for all legal purposes."
On September 28 the three non-Mormon officers took their departure, carrying with them to Washington the disputed money, which was turned over to the proper officer.*
All the correspondence concerning the failure of this first attempt to establish non-Mormon federal officers in Utah was given to Congress in a message from President Fillmore, dated January 9, 1852. The returned officers made a report which set forth the autocratic attitude of the Mormon church, the open practice of polygamy,* and the non-enforcement of the laws, not even murderers being punished. Of one of the allegations of murder set forth,—that a man from Ithaca, New York, named James Munroe, was murdered on his way to Salt Lake City by a member of the church, his body brought to the city and buried without an inquest, the murderer walking the streets undisturbed, H. H. Bancroft says, "There is no proof of this statement."** On the contrary, Mayor Grant in his "Truth for the Mormons" acknowledges it, and gives the details of the murder, justifying it on the ground of provocation, alleging that while Egan, the murderer, was absent in California, Munroe, "from his youth up a member of the church, Egan's friend too, therefore a traitor," seduced Egan's wife.
Young, in a statement to the President, defended his acts and the acts of the territorial legislature, and attacked the character and motives of the federal officers. The legislature soon after petitioned President Fillmore to fill the vacancies by appointing men "who are, indeed, residents amongst us."
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.*
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 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.'"* 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."**
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 diplomatic—at least, when Young did not lose his temper. The 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 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.* 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, 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 non-Mormon 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, and the demand was openly made that only territorial law should be enforced in Utah. When the question of jurisdiction came 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 d—d 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.* 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,* 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 a short time for Judge Stiles in Carson County (now Nevada)* in the spring of 1857, and then returned to the East by way of California, not concealing his opinion of Mormon rule on the way, and giving the government a statement of the case in a letter resigning his judgeship.