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CHAPTER VI.
Indictment of Brigham Young and Others.
The grand jury that indicted Thomas Hawkins also indicted Brigham Young and other high officials among the privileged Mormon ranks. They were charged with having violated Section 32 of the statute against lewd and lascivious cohabitation, quoted in the previous chapter, and by virtue of the confession of Bill Hickman, Brigham Young and those implicated by Hickman were also indicted for murder.
"Lewd" and "lascivious" are synonymous. The crime of lascivious cohabitation is defined in Bouvier's law dictionary to be "the act or state of man or woman not married, who dwell together in the same house, behaving themselves as man and wife." I had no doubt that cohabitation with almost the score of plural wives scaled to Brigham would place him among the violators of the provisions of the statute against lewd and lascivious cohabitation.
The two sections of the statute before set out were no doubt passed to punish Gentiles only. The procedure in the trial of the Hawkins case, and the indictment of Brigham Young and others for "lewd and lascivious cohabitation," greatly enlightened the members of the priesthood on that subject. For when it was discovered that those sections applied to their own unlawful practices - that their plural marriages followed by cohabitation was not only the commission of the crime of polygamy, but also of adultery and lewd and lascivious cohabitation - that they were liable to indictment and punishment for either or all these crimes in the same action, the legislature thereupon repealed both sections. Governor Emery stultified himself by approving the act repealing them, and from the time he did so until the passage of the Edmunds law of 1882, neither of the latter crimes was punishable in Utah.
I knew that the indictment of Brigham and others would cause great excitement, especially among the polygamic element of the Mormon church, and if a collision occurred it it would be at the time Brigham was arrested on the charge of murder. To meet such a contingency the United States marshal had appointed about one hundred deputies, most of whom had been soldiers in the Civil war, and General de Trobrian, commander of Camp Douglas, had been ordered to furnish upon the request of the governor a posse of soldiers to aid the marshal. I knew that the arrest of anyone except Brigham would not be resisted. I therefore had Hawkins arrested and tried before taking any steps in the other cases. During that trial the street in front of the courtroom was daily crowded by hundreds of men, many of whom were armed and whose demeanor was most threatening towards the court. I knew that the mob which daily assembled in front of the court house, and which seemed to be in charge of Lot Smith (leader of the squad in 1857 that captured and burnt one of Gen. Albert Sidney Johnston's army trains), in time would become tired and disperse, if nothing more was done than to arrest and place under bonds the persons indicted who were less conspicuous than the high priests of the Mormon church. From time to time, for a period of two weeks, I had such persons arrested. The mob in the meantime had dispersed, and the general excitement had been greatly allayed. Brigham was then arrested on the charge of lewd and lascivious cohabitation, and brought into court. He gave bonds, just as others were required to do. No special demonstration was made upon that occasion. In a few days later I had a warrant issued for his arrest on the murder charge. On Saturday evening I placed the warrant in the hands of the marshal and instructed him to make the arrest on Monday morning, before the court convened, and to inform his deputies to be ready to lend assistance if it became necessary. Evidently some of the marshal's deputies betrayed him, as Brigham learned of his intended arrest. On Sunday afternoon a meeting of a large number of Mormons was held at Jeter Clinton's ranch, which was situated about a mile beyond Garfield Beach. Brigham and other officials of the Mormon church were present. The meeting was convened to decide whether or not the arrest of Brigham should be resisted by armed force. Many present favored resistance, but others opposed resorting to force. Brigham finally decided that instead of resisting he would make a journey to the south for his health. Consequently that Sunday night he started south, but he did not, as was his usual custom, travel in state, nor was he met, as usual, by a large delegation at each town through which he passed. His journey from Salt Lake City to Kanab was secretly made. In the height of the excitement, and when the armed mob was menacing the court, a number of prominent Gentiles called upon me and stated that they had reliable information that, unless the prosecutions were stopped, the prominent Gentiles who had taken an active part in opposing the Mormon "system" would be assassinated that they had been appointed a committee to advise me of the fact and request me to dismiss the cases. I told the spokesman he would make a splendid angel, and as I did not intend to grant the request, he had better prepare to go to Abraham's bosom. He replied that the matter was "too serious to treat facetiously."
I then said "Gentlemen, speaking seriously, I think I know Brigham Young better than you do. He has assumed the role of a lion, and, if by roaring he can scare me as he has you, and thereby put an end to the prosecutions, it will strengthen the belief of his credulous followers that, as claimed by him, he is under the guidance and protection of a divine power greater than that of the United States, that as a lion he is not of much consequence, and when he fails, as he will, to accomplish his purpose in the role of a lion, he will assume that of the fox, in which he is very formidable." This was not the only time I had been subjected to a fire from the rear by men who should have encouraged instead of opposed me.
When I was in Washington urging the passage of the Cullom bill, which would have brought about much sooner the change which occurred more than twenty years afterwards, a number of men who should have aided, became frightened at the threats made by the leading Mormons in a meeting convened by Brigham, and having met in the Masonic hall in Salt Lake City, adopted resolutions protesting against the passage of that bill and forwarded the same to the Mormon delegate, to be used by him to defeat it.
In November, 1872, before any of the indicted parties except Hawkins were tried, George Caesar Bates, who had been appointed to fill the vacancy in the office of United States attorney, arrived in the Territory. At his request, I explained the status of the cases I had commenced, placed in his hands the written statements I had made of Hickman's confession, and gave to him the names of the other persons who had made statements tending to corroborate Hickman. Subsequently I had frequent consultations with him about the cases. He expressed a desire to bring the cases to trial at the next term of court and requested me to assist him, to which request I assented. He afterwards received a letter from Attorney General Akerman, dated December 20th, which was in answer to one sent to him by Bates, in which the attorney general said: "I have answered by telegraph that you are at liberty to employ Mr. Baskin, and I herewith enclose a commission for him." He delivered the commission to me, and we went along harmoniously for several weeks, but soon he began to make objections. He said that there was no money available to defray the expenses of the prosecution; that upon further investigation he was averse to bringing the cases to trial. At our frequent conversations regarding the matter he habitually made objections. I finally lost my patience, and said to him that it was evident to me that for some unaccountable reason he had changed his former intention of trying the cases, and did not intend to do so; that I had not been employed to discuss with him why the cases should not be tried, but to assist him in the trial; that I would no longer act in the matter and would return my commission to the attorney general with a statement of my reasons for doing so - and this I did.
Later, the judgment in the Englebrecht case was reversed by the supreme court of the United States, and as the grand jury which had found the indictments against Brigham and others was held by that court to be invalid, the criminal cases in question were dismissed. I regret that those cases were not tried, because their trial would have exposed, as did the first trial of Bishop John D. Lee, the deplorable conditions which then existed in the Territory; and the examination of Hickman, in my opinion, would have convinced the public that his confession was true, especially if he had been subjected to a rigid cross-examination.
Bates having been requested to resign, refused to do so, but was removed by the President, and William Cary appointed in his place. Respecting Bates' removal, Whitney, on page. 371, Vol. II of his history, says: "Mr. Bates had not shown a sufficiently antagonistic spirit towards the Mormons to suit the President's advisers in Utah affairs. William Carey, however, assumed the role of a `crusader.'"
Mr. Gary was incorruptible, and faithfully discharged the duties of his office, which caused Whitney to denounce him as he has every other incorruptible and faithful federal officer of the Territory. George Caesar Bates, soon after his removal, became attorney for the church and was employed later by Brigham Young to defend John D. Lee.
At the first trial of Lee on the charge of having participated in the Mountain Meadows massacre, Bates appeared as his attorney and took an active part in the trial, The animus of Bates is shown by the following extract of an article written by him, and contained in Whitney's history:
"Chief Justice McKean and his co-conspirators had their plans apparently well laid, but `man proposes, God disposes.' Chief Justice Chase and his associates, inspired by the God of Justice, stepped in at the last moment, overwhelmed the enemies of the Mormons, and scattered to the winds their unrighteous machinations. Before we present the proofs, however, from the records of this most remarkable interposition to arrest the hands of those would-be judicial murderers, we will give an analysis of the laws bearing upon the case. * * * Under this state of things the conspirators deemed it necessary at the outset to get rid of the territorial marshal and attorney general, and vest their duties in the United States marshal and district attorney. They also wished to nullify the statutes of Utah providing for the drawing and impaneling of grand and petit jurors, as they could not otherwise use the courts as instrumentalities for the destruction of the Mormons.
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