A REIGN OF JUDICIAL TERROR—JUDGES WITH A MISSION—JAMES B. MCKEAN—A JUDICIAL CRUSADE—A SYSTEM ON TRIAL—THE HIGH-HANDED MEASURES STOPPED BY THE SUPREME COURT—"MASTERLY INACTIVITY"—ELDER TAYLOR ON THE CRUSADE—"BE QUIET"—THE COUNSEL VINDICATED.

The years from 1871 to 1875 are notable in the history of Utah for the judicial reign of terror which prevailed. In the spring of 1871, James B. McKean, of New York, arrived in Salt Lake City and entered upon the duties of his office as Chief Justice of the Territory. He was a man of moderate capacity, a sectarian bigot, fanatical in his opposition to the Mormon people: in a word, he was "a judge with a mission," and utterly reckless in his methods of executing it.

His conception of the work appointed to him to perform as Chief Justice of Utah, is best expressed in what are said to be his own words to Judge Louis Dent, brother-in-law to President Grant:

"Judge Dent, the mission which God has called upon me to perform in Utah, is as much above the duties of other courts and judges as the heavens are above the earth, and whenever or wherever I may find the local or federal laws obstructing or interfering therewith, by God's blessing I shall trample them under my feet."

While it seems too monstrous for belief that a United States judge should make such remarks as these, it is a stubborn fact, borne out by the records of the proceedings of his court, that James B. McKean did all he threatened to do in the above reported conversation.

His first attack was upon the Territorial attorney-general and marshal, both of whom, without the authority of law, were pushed out of office and their duties performed by the United States district attorney and marshal. The next step was to ignore the Territorial statutes providing for the impanelling of grand and petit jurors; and authorizing the United States marshal to select them at his own pleasure. The result was packed juries of pronounced anti-Mormons, chosen to convict the Church leaders. One more step and the machinery of the court was ready for the evidently contemplated judicial crusade; the United States prosecuting attorney having resigned, Judge McKean appointed as his successor R. N. Baskin, a man as bitter in his hatred of the Church of Jesus Christ and its chief officers as the judge himself; and not one whit behind him in recklessness. This appointment was made in violation of law, since only the President of the United States with the consent of the senate, has power to appoint that officer.

The machinery all being ready, a number of indictments were found against men high in authority in the Church, under an old Territorial statute defining and punishing adultery. It was notorious throughout the United States that if these men in their polygamous relations were guilty of any offense at all, it must have been the violation of the anti-polygamy laws of Congress, and not the aforesaid Territorial law enacted by a legislature the members of which were chiefly polygamists.

Among those indicated under this regime was President Brigham Young, against whom an indictment with sixteen separate counts was found. Each count constituting a separate offense. He appeared in court to answer to these charges; and the judge in over-ruling a motion to quash the indictment took occasion to say:

"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 name is 'Federal Authority versus Polygamous Theocracy."'

Public sentiment was outraged by the high-handed measures of Judge McKean. Popular excitement ran high. For a time there was a threatened collision between the court and the people. It was at this juncture that Elder Taylor published five letters in the Deseret News, reviewing the situation in Utah, and denouncing the Territorial government as un-American in principle and oppressive in its operation; but at the same time warned the people against violent resistance to the court, insolent and oppressive as it was.

He was in court with President Young when Judge McKean made the statement: "It is therefore proper to say that while the case at bar is called 'The People versus Brigham Young,' its other and real name is 'Federal Authority versus Polygamous Theocracy.' * * A system is on trial in the person of Brigham Young." This he took for his text in the letters above referred to, and interpreted it to mean, which it did, that war was declared against the Church of Jesus Christ. "Stripped of all its tinsel and wrappings," said he, "it simply resolves itself into this: that the government of the United States is at war with the Church of Jesus Christ of Latter-day Saints."

Elder Taylor then proceeds to show that in making war on a system of religion, the great principle of religious liberty itself is threatened, and that such a crusade as that foreshadowed in the declaration of Judge McKean, could but end in disaster to the liberties of the people.

Giving himself wide latitude in the discussion, he inquired into the principles underlying American institutions, and from that inquiry arrives at the following conclusion:

"The whole foundation and superstructure of American ethics or jurisprudence is based upon the popular will. That its executive, legislative and judicial powers originate with the people, and that the people having granted to the men of their choice, certain powers, agencies and authorities, to act for and in their behalf; limiting all of them by the provisions of the Constitution which all of them take an oath to support, they reserve to themselves, to their state or to 'the people,' all the remainder.

"If indeed the above is a correct exposition of our rights and privileges as American citizens," he writes, "how is it that such infamies can transpire as have lately been exhibited in our courts? I may be here met with the statement that we are only a territory; but we are American citizens, and have never abjured our citizenship nor relinquished our Constitutional guarantees. * * If the above be true, and the axiom of the declarers of Independence be correct, that governments 'derive their just powers from the consent of the governed,' what becomes of our federal officers? For not one of our citizens invited them here, or had any vote in their coming, nor was their consent asked. If all just powers are derived from the consent of the governed, then the powers exercised by them [the Territorial officials appointed by the President] must be unjust.

" * * The facts are the people, one hundred thousand American citizens, living in the Territory of Utah, with the full rights of free men, and the protecting guarantees of a written constitution, find in the persons of federal officers 'another government' not of the people, and in violation of Constitutional guarantees and authority; claiming to come from the United States, 'imperium in imperio,' whose policy and practices are in grave particulars at variance with its own; and I ask by what authority it presumes to set itself up against the legitimately constituted authority of the people of the territory or state; by what authority it ignores its laws; by what authority it over-rides and tears down the safeguards of society, fosters in our midst drunkenness, gambling and whoredoms, those infamous adjuncts and institutions of professed civilization; by what authority it repudiates its officers; by what authority it interferes with the religion of the people, with their social, religious, political and moral rights?"

He then proceeds at some length to show that some of the most eminent statesmen of America held to the view that the people of the territories possessed the right to manage their own municipal, social and domestic affairs in that way which to them seemed best, limited only in the exercise of these powers by the Constitution of the United States.

These letters, however, were most valuable in allaying the excitement of the people, who by the infamous proceedings of the courts were fast approaching that condition of mind when men throw off all restraint, and regardless of consequences avenge their own wrongs. He called the attention of the people to the fact that this was probably the object of the crusade, that a pretext might be found for further oppression and robbery.

"The lamb is drinking below, the wolf is fouling the water above. The big boy is strutting about with a chip on his shoulder, daring you to knock it off. Some pretext is needed. Don't give it to them. * * Let the same wisdom that has governed your acts hitherto still be continued. They want a cause of quarrel, that they may rob and pillage according to law. Don't give it to them. * * Let them pack juries fresh from houses of ill-fame to try you on virtue. Never mind, it is their virtue that suffers, not yours. Let them try you for living with and protecting your wives and providing for your children; fidelity and virtue are not crimes in the eyes of the Almighty, only in theirs.

"' * * But they are accusing some of our best and most honorable men of murder!' What of that? Who have they suborned as their accusers? They themselves call them by the mild name of assassins—these are their fellow-pirates with whom they hob nob and associate. Be quiet!

"'But other aggressions are contemplated; they are bent on provoking a quarrel and mischief.' No matter, it takes two to make a quarrel, don't you be one of them.

"'They offer themselves to be kicked.' Don't do it, have some respect for your boots.

"'But they insult us on every hand.' What! they insult you! Nature has provided for many animals and insects a certain species of aggression and defense. Some snakes crush their victims in their folds; others carry poison in their teeth; the wasp and scorpion sting you; the ant poisons with its bite; the vampire sucks your blood; while the pole-cat protects itself by its insufferable odor—

"'Their power to hurt each little creature feels,
Bulls use their horns and asses use their heels.'

"Now who would consider himself insulted by the hissing of a snake, the attack of the wasp, or the odor of a skunk? You would simply avoid them. It is not in their power to insult you.'

"There is no law they can place us under which we cannot obey. We must live above all law, and nothing can harm us if we are 'followers of that which is good,' so keep quiet!'

" * * There is something heroic in being able calmly to view with firm nerves and unblanched cheek the acts of your petty tormentors. Filled with the light of eternal truth, rejoicing in the possession of the favor of God, 'having the promise of the life which now is, and that which is to come," standing on a more elevated platform, you can smile with complacency on their feeble attacks, and"

'Like Moses' bush ascend the higher,
And flourish unconsumed by fire.'

"But independent of this, it is our very best policy to be quiet. The court can proceed, yet the sun will rise and set, the earth will roll on its axis, potatoes and corn will grow irrespective of the decrees of courts. Hitherto you have been subject to the misrepresentations and manufactured lies from the small fry of this coterie—little whelps who lick the hands of their master, and vomit their lies by wholesale, to pervert public opinion; but they are found out. They have run their erratic race. You have no fear from them. Your cause is before the public. The eyes of the great American nation are now upon you, and men of honor, probity and position represent your acts. (And to their honor be it spoken the intelligent press, irrespective of party, denounce your persecutors.) This clique are not representatives of American sentiment. The majority of strangers in our midst repudiate them; and there are hundreds of thousands of honest, high-minded, honorable men throughout the land, who despise as much as you do, these infamous acts. We live in the most liberal and enlightened nation in the world; if there are evils, they can be corrected; but the undercurrent, the vital, strong, living sentiment of America is fair play, justice for all, equal rights, liberty, equality and brotherhood; they are opposed to hypocrisy, fraud, injustice and piracy, and will sustain republicanism, democracy, equity and the inalienable rights of man. Men of standing and position are now noting your acts, and they will report them truly and correctly; therefore keep quiet, and do not play into your enemies' hands. For they war, not only against you, but against the liberal, enlightened sentiment of the nation, against the time-honored principles of republicanism and equal rights."

The wisdom of the policy advised by Elder Taylor was soon vindicated by glorious results. The Supreme Court of the United States decided that the grand and petit jurors summoned by McKean, were both drawn in violation of law, and as "a legal consequence, all the indictments now pending in the courts of Utah are null and void. Brigham Young and his Mormon brethren must be discharged from confinement, and the records of this judicial conspiracy expunged." McKean had the mortification of setting in the Supreme Court at Washington during the reading of this decision which so utterly condemned his fanatical and illegal proceedings.

But the end was not yet. McKean still had sole control of judicial affairs in Utah, in the district courts; and not being able to prosecute Mormons according to the plan he had first adopted, he determined to follow the policy of "masterly inactivity," by which he hindered and delayed the business of the courts, both civil and criminal, by refusing to empanel either grand or petit juries, hoping by this means to compel Congress to enact such a jury law for Utah as would keep Mormons off all juries, whether they were actual polygamists or only believers in it; and thus enable him to drag the class of men he had singled out as his victims, before their avowed enemies for trial. In these measures he was partially successful for Congress passed the Poland Bill in 1874, which virtually abolished the office of Territorial marshal and Territorial attorney general, by enlarging the duties and powers of the United States marshal and United States prosecuting attorney. The powers of the probate courts were also cut down, being limited by the Poland Bill to jurisdiction in the settlement of the estates of deceased persons and their descendants, guardianship and other like matters; but otherwise they were to have no civil, chancery or criminal jurisdiction whatever. They were permitted to hold concurrent jurisdiction in divorce cases with the United States district courts, but an appeal could be taken from them after appearance, before plea or answer. Thus the courts of the people were practically abolished and others set up in their place. Changes were also made in the manner of selecting juries, so that the Gentile population—at the time but an insignificant minority of the inhabitants of Utah—was given equal representation on the juries with the overwhelming majority of the people.

The conduct of Judge McKean and the measures introduced into Congress respecting Utah affairs, again brought Elder Taylor out in a series of six letters to the press, in which he made a scathing exposure of federal official corruption in our Territory, and a searching criticism of the various measures pending in Congress, previous to the passage of the Poland Bill. In closing one of these letters that reviewed some of the bills in Congress, he made the following stirring appeal to the national legislators:

"With all the reverence and respect due to the rulers of a mighty nation, from the tops of these distant mountains I call upon you to pause in your career, for I also am a teacher, and have a right to be heard. I speak in behalf of one hundred and fifty thousand citizens of Utah. I speak in behalf of forty millions of free American citizens in the United States. I conjure you out of respect for the memory of the dead, as the rightful guardians of the liberties of a vast nation, that stands proudly prominent among the nations of the earth, and in behalf of unborn millions, to pause. I conjure you, in behalf of our honor and integrity, in behalf of republican principles, and the cause of freedom throughout the world. I plead with you in behalf of our common humanity, and the rights of man, to reflect. Would you, to gratify a morbid sentimentality desecrate and tear down one of the most magnificent temples of human liberty, ever erected? Would you wantonly deliver up the sacred principles of liberty, equity and justice, bequeathed by your fathers, to the grim Moloch of party who is crushing, grinding and trampling under foot our God-given rights, and whose sanguinary jaws are extended to gorge and devour the quivering remnants of our feeble, expiring liberty? Have we not had more than enough trouble already with Virginia, North Carolina, Louisana and Utah? Can we ever be satisfied? 'Let us have peace.'"

The opening of the "Black Book," as he called his inquiry into the conduct of federal officials in Utah, revealed a lamentable state of affairs. Men who had come to the Territory for the ostensible purpose of administering the law were found to be among the chief transgressors thereof, and the aiders and abettors of criminals. But I allow Elder Taylor to make his own indictment against them, only adding that he demonstrated the truth of every item charged in it, by publishing the time when, the places where, and the names of the criminals they liberated. Elder Taylor writes:

"While our territorial courts, officers and municipal authorities, have been always foremost in punishing crime, whether committed by Mormons or Gentiles, some of the United States officials have shielded and protected criminals, and for this purpose every subterfuge known to the law has been brought into requisition. Thus, by writs of error, injunctions, habeas corpus, pardons, and officious and indecent interference, they have exhibited themselves as the abettors and protectors of crime. They have liberated felons and murderers, encouraged drunkenness and riot, protected and shielded brothel-houses, winked at and sustained gambling, and so clogged the wheels of justice, in both civil and criminal cases, that they have brought the judiciary into such contempt that it has become a stink in the nostrils of honest men."

These charges and the facts he published to prove them he prefaced with the following:

"I am not writing under the very questionable shelter of a nom de plume, and have nothing but facts to relate, for which I hold myself responsible."

The parties he indicted before the bar of public opinion made no attempt to refute his statements—a tacit admission of the truth of his charges.

Judge McKean and his coadjutors, however, continued their lawless course. The judge entertained a suit for divorce and alimony brought into his court by Ann Eliza Webb, the plural wife of President Brigham Young. The marriage between Ann Eliza Webb and Brigham Young was not recognized by the law of the land. It was illegal, and therefore void from the beginning; consequently there could be neither divorce nor alimony. Still Judge McKean entertained the suit, and ordered the defendant to pay $3,000 attorney's fees to plaintiff's counsel, $9,500 alimony to plaintiff, and also $500 per month to her, pending a decision in the case.

President Young, acting on the advice of his counsel, pending an appeal to the supreme court of the United States, did not obey the orders of the judge; whereupon he was found guilty of contempt of court, fined twenty-five dollars, and sentenced to one day's imprisonment in the penitentiary. In this James B. McKean displayed the petty, personal spite of a small man, instead of the courage of a dignified judge defending the honor of the bench. The rash and illegal act cost the Judge his official head. No sooner did the country become acquainted with the course he had taken than a storm of public indignation arose, and clamored loudly for his removal from office. Four days afterwards he was dismissed from the bench.

The federal officers which followed the McKean ring were a better class of men; and for some years Utah had a period of peace. A circumstance which vindicated the wisdom of Elder Taylor's counsel to "Be quiet."