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CHAPTER IV.
The Englebrecht Case.
There is no better commentary on the social, political and religious history of a people than the certified record of its contemporaneous court decisions. For that reason I shall take the liberty to cite from time to time those cases which, I believe, are characteristic of the influences which dominated, and the spirit which actuated, the community life of Utah at this time.
Paul Englebrecht and Christian Rehemke, in 1870, were wholesale liquor dealers. They had in their establishment a stock of liquors which cost them before shipment from the east, according to the sellers invoices, $20,000. A dispute arose between them and the city license collector as to the amount which they were liable to pay. Jeter Clinton, the police magistrate of the city, without the institution of any suit, or giving them any notice, issued a warrant to the city marshal requiring him to destroy their stock of liquor. The city marshal and a number of the police force, on August 27, 1870 entered their establishment and rolled and carried on to the sidewalk, every barrel, keg, bottle and vessel containing liquor, and with axes and hammers broke all of them and poured the contents into the gutters. Likewise was destroyed every fixture and article used in their business.
As the attorney of Englebrecht and Rehemke, I instituted suit in the third district court to recover treble damages allowed by the provisions of a Utah statute for the malicious destruction of property. Judge McKean had recently been appointed by President Grant as chief justice of the Territory, but had not yet arrived. Associate Justice Strickland had been presiding over the third district court, and as the September term of that court was near, had issued an open venire to the United States marshal on which that officer had summoned a grand jury. Chief Justice Wilson was the predecessor of Judge McKean, and in the case of Orr v. McAllister had decided that Orr, who was United States marshal, was the proper executive officer of the district court, and that McAllister, who was territorial marshal, was not. The question whether the United States attorney and marshal or the territorial district attorney and marshal were the proper prosecuting and executive officers of the district court, previous to 1870, had been a mooted one. The question hinged upon the character of the district courts. If they were United States courts, then the provisions of the judiciary act of 1789 applied to them, and the United States district attorney and marshal were the proper prosecuting and executive officers of those courts, and the mode of summoning said grand jury was correct. By the sixth section of that act the supreme court of the United States was authorized to "make rules of practice for the district and circuit courts of the United States." In pursuance of that authority, the following rule was made by the supreme court of the United States in 1864:
"In suits in equity for the foreclosure of mortgages in the courts of the United States, or in the courts of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same."
Evidently the judges of the supreme court of the United States when that rule was made regarded the district courts in the territories as district courts of the United States. After the Territory of Florida was admitted into the Union, an act was passed by the State placing the records of the territorial court of appeals in the custody of a State officer. In the case of Hunt v. Palao et al, (4 How. 590), the question whether the United States or the State of Florida should control the records was involved, and Chief Justice Tancy, in the opinion, said:
"The territorial court of appeals was a court of the United States, and the control of its records therefore belonged to the general government, and not to State authorities."
When Judge McKean opened the September term of the third district court in 1870, to which he had been assigned, he found in attendance a grand jury which had been impaneled on an open venire issued by his associate, Justice Strickland, summoned by the United States marshal. Jeter Clinton, and the police officers who had destroyed the stock of liquor mentioned, had been arrested on the charge of maliciously destroying said property, and were under bonds pending the action of the grand jury. Upon the opening of the court, their attorneys challenged the array of the grand jury. Major Hempstead, who was the United States attorney, and myself, made arguments in opposition to the challenge, and referred the court to the rule of the supreme court of the United States before mentioned, the decisions in Hunt v. Palao and of ex-Chief Justice Wilson in the case of Orr v. McAllister, and various acts of Congress bearing upon the question. The challenge was overruled. Respecting that ruling, the following comment is made in the second volume of Whitney's history, page 565:
"With the jurisdiction of the probate courts limited and curtailed as to throw most of the criminal and civil cases that might arise into the district courts, and those courts presided over and officered by men working all but confessedly in the anti-Mormon cause; with the power to select juries from which every Mormon was carefully excluded and none but non-Mormons chosen to find indictments or to render verdicts, the conspirators were jubilant and in high feather, and the rights and liberties of the people at large in imminent jeopardy. The revolution anticipated by the anti-Mormons was at hand. The Mormons were at the mercy of their enemies. The cause of `the ring' was paramount."
Prior to this time I had never known of a Gentile, under the Mormon method, being selected to serve either as a grand or a petit juror. After the jury system was changed, and under the fifth section of the Edmunds law of 1882, any one "believing it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman" was disqualified, and every member of the Mormon church for that reason was excluded from the juries in the numerous trials of persons charged with the crime of unlawful cohabitation, which occurred after the passage of that law. No innocent person was ever indicted or convicted. I do not think that even Whitney, unscrupulous as his history shows him to be, will deny that fact. Nor do I think he really believed that the persons whom he called "crusaders" and "conspirators" had any other motive than to correct existing evils, and substitute in fact a republican system in place of an un-American, Asiatic system established and maintained in the Territory by the high priesthood of the Mormon church.
The Englebrecht case was tried before a jury summoned in the same way the grand jury had been. The plaintiff recovered judgment for treble damages. The supreme court of the United States reversed the judgment on the ground that the jury was not obtained in the manner prescribed by the territorial legislature. It was also held that the district courts of the Territory were not United States courts, and thereby that court not only reversed Judge McKean's decision on that point, but also one of its own, to wit, Hunt v. Palao. Judge McKean's decision was, however, approved by Congress, for afterwards its substance was included in the acts passed by that body. While the judicial proceedings in the Englebrecht case are truthfully stated by Whitney, his unjust deductions and insinuations regarding the case, as in many other matters, show his bigotry.
Judge McKean entered upon the discharge of his official duties a few days after his arrival in the Territory. Among the first questions submitted to him was the mooted one before mentioned. His decision of it accorded with the decisions of his predecessor, Chief Justice Wilson, and of his associate, Judge Strickland, and with the rule and decision of the supreme court of the United States before quoted, and was afterwards sustained by the supreme court of the Territory. A search of our supreme court reports will disclose the fact that numerous decisions of the lower court have been reversed, and that our supreme court has frequently reversed its own decisions. This has been done by every supreme court in the Union, as also by the supreme court of the United States; yet, notwithstanding this, and that Judge McKean's decision should have been the law - and was afterwards, in substance, made the law by the acts of Congress - his action in so deciding is bitterly decried in Whitney's history, as is the action of nearly everyone who has held a federal office in the Territory, and of nearly every individual who has actively opposed the control of governmental affairs by the priesthood. After the Englebrecht case was reversed, it was again tried and the plaintiff recovered a judgment. And as it was doubtful whether even the original cost of the liquor could be obtained on execution, the plaintiff accepted the offer of the defendant's attorney to pay the original cost of the property destroyed. That amount was paid by money taken from the city treasury.
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