THE MORMON TRIALS.
A REVIEW OF THE ACTION OF THE COURT.
JUDGE M'KEAN'S INTERPRETATION OF THE UTAH STATUTES — ARGUMENTS AGAINST IT — THE MORMONS AND THEIR VIEWS OF THE PROS-ECUTION— THE JURY— AN EXPOSITION OF THE VIEWS OF MANY CITIZENS OF UTAH.
[In accordance with the uniform practice of THE TRIBUNE to hear both sides of every question, we pub-lish the following, because it seems to as a concise and thoughtful summary of the arguments of those who are opposed to the course of Judge McKean in the Mormon prosecutions. It is almost unnecessary to add that we disclaim all responsibility for the statements or opinions of the writer, and that we have given without reserve all arguments from those of opposite views who have sought temperate expression through our columns.]
To the Editor of The Tribune.
SIR : A ripple upon the stagnant surface of affairs was caused, on the 27th ult., by the mandate of the Court that Brigham Young must present himself for trial under the indictment for lascivious cohabitation with his sixteen wives, on Monday of the next week. This order gives the Mormons one more opportunity to complain, with reasouable grace, of ill treatment by the Court. They declare that this action is unfair, inasmuch as Judge McKean promised Brigham's counsel that ample time should be given the defense for preparation. They say that at this season of the year, with roads almost impassable, it is physically impossible for Brigham to be here at the time appointed. A great snow-storm, which has been raging here for several days, has demolished the wires south, and telegraphic communication with Brigham's tempo-rary home— St. George, near the Arizona line— is accord-ingly suspended. By the traveled road the distance is 350 miles, a fair week's journey in the best of times. As the accused cannot, therefore, be in court 011 the day fixed, the bail will of course be declared forfeited. The bondsmen, Messrs. John Sharp and William Jennings, are worth a million or two, and the $5,000 will not affect them seriously, while the money will be gratefully received and speedily appropriated by the court and its attachés— unless, indeed, the Territorial statute should for once be followed, and the money pass into the County Treasury as provided for, by law. To some of the officials the circulating medium will be infinitely more acceptable than could be the presence of ten thou- sand Brighams. It does not appear possible for the Judge to make the Mormons happy. I do not know that he can be said to make any very frantic efforts to this end, but it is apparent that all his labors for their well-being fail to extort from them a word of commendation. Worse than this, too, intelli-gent and honest anti- Mormons here and else-where express dissatisfaction at his course. Candid and thoughtful men declare that the end—the destruc-tion of polygamy—does not justify the means adopted. This view, although by no means universal, is evidently in the ascendant wherever the questions at issue are most clearly understood. Polygamy must be destroyed, but not by trick, evasion or fraud. The truly zealous Mormon denies that it is dying out, and refuses to admit that it can be extinguished at the hand of man. The practice having been authorized and commanded by God, the institution will be preserved by miracle when all other means fail. The court and its officers say, in effect, that, inasmuch as the crime is anomalous and shameful in its character, measures equally offensive in the matter of taste, and nearly as questionable in a moral and legal sense, are wholly justifiable for its overthrow. To readers at a distance, unaware of the bitterness which prevails, the attitude of the Court in this regard is evident-ly witnessed with regret. That it should have defenders outside of its own immediate circle is remarkable. But even the Court itself, as well as its constituted mouth- pieces, are compelled to admit that It is forced " to dis-regard the forms of law and justice" in the accomplish-ment of its important work.
To the American mind there is something humiliating in this admission. To the Mormon mind, it is triumph itself, because it says, literally, polygamy, though deemed a crime, cannot be punished as such under the law. To reach it, it must be called by some other name. To punish it, it must be defined as law-maker, jurist, and lexicographer have never defined it, and the thing which it is called must be punished, rather than the real offense committed.
The facts in the case are few and simple. When under-stood, the number of extremists—comprising the most inflexible Mormons on the one hand, and those who seek their extinction, as savages, on the other—will diminish, leaving the great body of humanity to meet and van-quish this foe to progress with reason and justice, those weapons of celestial temper with which such battles are ever to be won. Let me state the position and suggest the remedy.
A grave offense against the moral sense of the nation, the teachings of Christianity, and the laws of the laud, is daily and undeniably committed in the Territory of Utah. Against this offense—revolting to the moral sense of all save those who have regarded it as a divinely authorized religious duty, to be as sacredly discharged as any other obligation im-posed upon them by the Almighty—a judicial warfare is being waged. The laxity of the Government in relation to this evil, and its supineness upon the question of the cessation or continuance of the illegal and extraordinary practice, have called forth varied criticisms to all lands where thought is interpreted upon the printed page. The roads of iron linking the desert to the great world without, have laid bare a thousand secrets which isola-lation concealed. The delusion which makes polygamy satisfactory and desirable alike to the male and female parties to the anomalous contract has been looked upon by a multitude of wondering eyes, and discussed in the very house of its victims by friendly tongues. Public sentiment is aroused, and the parent government can no longer rest in utter heedlessness of the grave offense.
It is safe to say that without this public sentiment, in-duced by observation, rendered possible by new facilities of travel, and stimulated by mineral discoveries, the Mormons might have remained in peaceful possession of their unenviable tenets for years to come. Polygamy does not appear to be conducive to immorality, except so far as it is immorality. Its chief martyrs—the women—are its most earnest advocates here. With rare excep-tions, they hug their self- imposed chains with the ardor of devotees. The few males who have abandoned Mor-monism are still generally polygamists, and are less apostates to the Mormon faith than to the stern, all- powerful, and all- conquering rule of the Mormon "Pres-ident." To foes from without then, rather than to ene-mies from within, may the Mormons look for the founda-tion of that public sentiment which declares that the great sin of Mormonism is polygamy, and that this evil shall be met and vanquished.
The influences that have created this pubic sentiment, which pronounces against the continuance of polygamy, are not without their due effect upon the Mormons them-selves. The less ardent believers lose something of their faith in modern revelations, and discover cause for doubt as to the superiority of their peculiar system. The half-dozen wives of one man compare their lives and sur-roundings with those of the one happy and contented wife of some Gentile resident. Especially is this true in the matter of dress— that darling topic of the female heart. To be one of many wives is to wear inexpensive apparel, and, generally, to walk humbly at all times; while to be the one wife of a respectable Gentile tourist or resident here, is to dress in purple and fine fabrics, and fare sumptuously every day. The young men travel, now that the long and toilsome journey of months is supplanted by a delightful excursion of a few days. They bring back ideas, and especially one that Polygamy is hard on man, because it lowers his social status in the great outer world, and imposes upon him grievous burdens at home. The young woman may not travel as widely, but she catches glimpses of "happier lives than polygamous homes afford, and couples them with the troubled admissions of her mother, it may be, that polygamy oppressive to woman in this life, although compensated by an unfading crown in the life to come. Added to all these is the shrewd old Mormon who foresees the inevitable tendency of events, and if fortunate enough to have but one wife, rejoices in his heart, while stoutly asserting that polygamy is of divine origin, a thing of duty, and a joy forever "to those who practice it in the right spirit." And thus the process of disintegration goes on, admitted by few, de-nied by many, grieved over by the devout, joyfully hailed by a few sad women who lack strength to escape from the system, save by the decline of the system itself; and rejoiced in, with joy unspeakable, by those who believe in conquering error by love, and in lighting up the dark places of earth with reason’s rays. The whole thing is a bubble, as clearly as was the boasted "Con-federacy," which Sherman pricked in this bloodless march: only the army now pressing forward to victory is one of ideas, of principles, of intelligence, and in its system of warfare it must remonstrate with, and de-nounce, if need be, alike the timidity of the apologist for polygamy, the rapacity of the pirate who seeks personal gain in its dethronement, and the injudicious zealot, who forgets justice in his desire to deal a final blow to an expiring system.
I desire at this time to make myself so plain that he who runs may read, and I entertain the conviction that the fanatics who love polygamy as a God-given article of their faith no less than those other equally misguided and less pardonable fanatics who would ride through the law and dethrone justice, in the pride of place and power, and their hatred of a mistaken but well-meaning people—shall hereafter comprehend that so-called re-ligious systems, as well as so-called courts of justice, are legitimate subjects for criticism by the leading press of the nation, and that neither the one nor the other can evade the application of the plumb-line by which the acts of selfish men and the results of unworthy meas- ures shall be rendered apparent and stigmatized accord-ing to their deserts.
Polygamy, then, is the offense, and should be made the object of attack. Notoriously it has existed ever since the Mormons came to Utah, and there is no lack of testi-mony in support of the assertion that it was a fixed principle of the Mormon faith as early as 1843. Yet the remark of your correspondent that the law under which Hawkins was convicted and Brigham Young indicted, was never intended to punish polygamy, but was aimed at a totally different offense, is met with tile rejoinder that "this is an assumption unsustained and unsustain-able by a particle of proof." In the case of Brigham Young, in refusing the motion to quash the indictment, Judge McKean remarked that "the Supreme Court of California has well said that the Courts are bound to take notice of the political and social, condition of the country which they judicially rule." To learn that polygamy was a fixed fact long before the passage of the act alluded to would not add materi-ally to the labors of the Court, which would thus seek the more perfect discharge of that bounden duty, im-posed upon it by the adoption of the language quoted. A single hour devoted to the study of "the political and social condition" of the people whose offenses he has determined to punish, legally or illegally, would con-vince even Judge McKean's unwilling mind that no as-sumption is more clearly susceptible of proof than that polygamy was "as generally practiced in 1852, when Brig-ham Young, a polygamist, and his polygamous Legisla-tive Assembly passed the act to punish the crime of adultery and lascivious connection, as it is to-day. No other assumption than this is sustainable by a particle of proof, because none other is consistent with the facts.
If the Judge had sought to administer law in the spirit and intent of the lawmakers, he would have sought evi-dence as to that "intent," which, to the mind of the sound jurist, "governs the deed." He would not have rested satisfied with the evidence of a few obscure Mormon publications, which, with characteristic Mormon incon-sistency, denounced the practice of polygamy long after it became a leading dogma of the church, but would have employed the means at his command to reduce to tangi-ble form, the facts of history. Let me briefly review those facts.
On the fifty-first day of the first session of the Legisla-tive Assembly of Utah, in joint session, an Act was passed under the title of "Crimes and Their Punishments," two sections of which, under the sub-title of “Offenses Against Chastity, Morality and Decency," were as fol-lows:
SEC. 31. Every person who commits the crime of adul-tery shall be punished by imprisonment not exceeding 20 years and not less than three years, or by fine not ex-ceeding $1,000 and not less than $300, or by both fine and imprisonment, at the discretion of the Court. And when the crime is committed between parties any one of whom is married, both are guilty of adultery, and shall be pun-ished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or wife.
SEC. 32. If any man or woman, not being married to each other lewdly and lasciviously associate and cohabit together; or if any man or woman, married or unmar-ried, is guilty of open and gross lewdness, and designedly makes any open and indecent or obscene exposure of his or her person, or of the person of another, every such per-son so offending shall be punished by imprisonment not exceeding 10 years and not less than six months, and fined not more than. $1,000, and not less than $100, or both, at the discretion of the court.
The members of the Legislative Assembly, at the time of passing this act, were as follows : Council— Heber C. Kimball, Willard Richards, Daniel H. Wells, Orson Spencer, John S. Fullmer, Charles R. Dana, Loren Farr, Alex. Williams, Aaron Johnson, Isaac Morley, George A. Smith, Edward Hunter, Orson Pratt. House—Wilford Woodruff, David Fullmer, Daniel Spencer, John Brown, Willard Snow, Albert P. Rockwood, Edwin D. Woolley, Pliineas Richards, Joseph Young, Henry G. Sherwood, Benj. F. Johnson, Hosea Stout, Andrew L. Lamoreaux, James Brown, David B. Dille, John Rowberry, David Evans, William Miller, Levi W. Hancock, Charles Shum-way, William W. Phelps, William Kay, Gideon Brownell, Nathaniel H. Felt, John Stoker, James G. Browning.
Now, it is a fact known to every citizen of the period, and denied by none, that every one of the 13 members of the Council was, at the time of the passage of the act from which I have quoted, in the possession of more than one wife, and that of the 26 members of the House only the three last named were at that date non- polygamists, and even these three have since become polygamists. One of them, Nathaniel H. Felt, took a second wife dur-ing the life- time of the first, only one year later than the period of which I write. The minutes of the session show that the bill was reported by Daniel H. Wells, now one of the "First Presidency" of the Mormon Church, who was married to Louisa Free—having another wife living— on the 15th of February, 1849; and that Wilford Woodruff, who has been the fortunate possessor of six wives, although now blessed with but three, moved its passage. On the 6th of March, 1852, the signature of Brigham Young—then the husband of eight wives—Governor of the Territory by appointment of Millard Fillmore and confirmation by the U.S. Senate, was affixed, and the bill became a law.
Aside from these universally admitted facts, the po-lygamous condition of Brigham Young and several of the prominent Mormons whose names I have given is "publicly attested by the then Territorial Secretary, Har-ris, and Judges Brandenburg and Brochers, together with all the anti-Mormon writers- of the period. Other evi-dence—which any Court desiring to take notice of the political and social condition of the country over which it sits in judgment could hardly remain in ignorance of—is found in the sworn testimony of Desdemona Fullmer, who, on June 17, 1869, made oath before James Jack, No-tary Public, that she was married to Joseph Smith by Brigham Young, in July, 1843, Smith's first wife, Emma, and Heber C. Kimball, being present at the time. Har-riet Cook swears that on Nov. 2, 1843, Fanny Murray was married to Joseph Smith by Brigham Young, in her presence, as well as in the presence of Mary Ann Young, Brigham's first wife. Elizabeth B. Pratt also swears that she was "married or sealed for time and all eter-nity" to Parley B. Pratt, by Hyrum Smith, brother of Joseph, in the presence of Mary Ann Young aforesaid, and Pratt's first wife, Mary Ann, on the 2d day of No-vember, 1843. Thomas Grayer, who now resides at Farmington, 18 miles north of Salt Lake City, swears that in the month of August, 1843, he was "married or sealed by Hyrum Smith, by order of President Joseph Smith, to Caroline Whiting and Caroline E. Hubbard, according to the principle and commandment con- tained in the Revelation or Celestial Marriage, given July 12, 1843." Lovina Walker, the eldest daughter of Hyrum Smith, brother of the "Prophet" Joseph, who was born Sept. 16, 1827, and now resides at Farmington, Utah, testifies that while she was living with her aunt Emma Smith, the Prophet's first wife, in Fulton City, Illinois, in the year 1846, the said Emma stated that she was present and witnessed the marrying or sealing of Eliza Partridge, Emily Partridge, Mariah Lawrence, and Sarah Lawrence to her husband, Joseph Smith, and that she, the said Emma, gave her consent thereto. The Emily Partridge mentioned, is now the wife of Brigham Young, and has been since 1846. The Lawrences are sisters of Henry W. Lawrence—a promi-nent merchant and disaffected Mormon—and now reside in Utah.
William Clayton declares that Joseph Smith received the "revelation" commanding plural marriage on the 12th day of July, 1843— nine years before the Utah Legis-lature passed the act against lascivious conduct—and that he wrote it down from Smith's lips. The practice was unquestionably privately enforced by Smith upon a select and trusted few, as soon as the so- called revela-tion was put upon paper. The circle of its adherents and participants was constantly widening, until the Mormons arrived in this valley in 1847, after which the practice speedily became as general as at the present time, when probably 10 per cent of the adults are living in the plural relation. In September, 1852, the doctrine was publicly proclaimed, and its practice by all marriageable persons urged upon the Mor-mons in Utah by Brigham Young. In the face of all these facts, abundantly supported by thousands of living witnesses of all shades of opinion, it is of course absurd to assume that the act of the Utah Legislature from which I have quoted was by any possibility or under any interpretation intended to punish polygamy. If additional testimony were needed to sustain this po-sition, it is found in the fact that seventeen legislative sessions have been held in Utah since the passage of that act, a large majority of the members of each having been polygamists; and yet no change has been made in the law eince the date of its approval by Brigham Young.
On the first day of July, 1862, President Lincoln ap-proved an act of Congress, entitled "An act to Prevent the Practice of Polygamy in the Territories of the United States." etc. (Statutes at Large, p. 501, IId Session, XXXVIIth Congress), the text of which, so far as it re-lates to the offense now under consideration, is as fol-lows:
"Be it enacted, &c., That any person having a husband or wife living who shall many another person, whether married or single, in a Territory of the United States, or other place over which the United States have exclusive jurisdiction shall * * * "be adjudged guilty of bigamy, and, upon conviction thereof, shall be punished by a fine not exceeding $500, and by imprisonment for a term not exceeding five years."
Friends of the court declare this law to be inoperative because of the difficulty of proving that the party accused has another wife living, and they further assert that Congress is powerless to so amend the act as to meet and punish the offense. Added to this is the humiliating admission that the prosecution for polygamy must proceed under the Utah statute or break down entirely. If any other excuses have been made for in-dicting under the Utah act, I have failed to hear of them.
I do not know how these statements will strike the 150 able lawyers comprised in the Congress now about to meet, nor the other sagacious men from various walks of life who are members of that body. To the mind of very many thoughtful persons, they are simply contemptible. There is not a polygamist in Utah who would not rejoice in the opportunity to testify that the mothers of his children, be they two or twenty, are his wives. Put the accused on the stand, and you will find no lack of evi-dence of the offense at which Congress aimed the section which I have quoted. If the proportion hesitates to rely upon such testimony, and deems the admissions of the accused inadequate, and not to be depended upon because involving self-crimination, let Congress so amend the act as to render it consistent with the stat-utes of several States and the decisions of numerous Courts, which hold that in the case of a bachelor having a mistress whom he introduces as his wife, marriage de jure shall be deemed to exist so far as the wife's dower and their children's inheritance are involved. The law-making power has a perfect right to say that the man who introduces two women as his wives, and the children of both as his children, is the husband of both, without the production of the marriage certificate or the testimony of witnesses to the ceremony. The act of Congress defines the crime and affixes the penalty; it is folly to assert that Congress has no authority to stipulate the quality and description of evidence upon which convic-tion may be based, or that the whole question of evidence may not be left to the intelligence of the jury, under in-structions from the Court.
Further than this, I submit to all thinking men that it would be better to allow this long- endured and now-dying evil to go unpunished in the Courts than, in the exercise of a zeal which outruns discretion, to wrest the law from its intent, and thereby give the Mormon the opportunity to relevantly and exultingly exclaim, " Polygamy cannot be punished save by trickery and fraud. Story was right when he declared that the Con-stitution guaranteed alike to the Mohammedan and the Christian the right to practice the tenets of his religious faith unharmed." The court provides the Mormon mis-sionary with the most potent weapons. Boston's Murray has said, that "the surest way to keep an unconverted man unconverted, is to disgust him." The remark is as true here as in Massachusetts, and is as applicable to the devout Mormon, who believes in many God's and many wives, as to the unregenerate Bostonian, who pins his faith to one or less of each. The surest to con-vince the Mormon fanatic that his leaders are correct in their inconsistencies, and to consolidate him in his faith, is to confirm their prophecies and vitalize their taunts. To these ends the court has unwittingly and unfortunate-ly labored for more than two months past. To logically follow its rulings and decisions has been found impracti-cable. What the statutes had somewhat muddled, the court has involved in yet deeper obscurity.
An instance of this is found in late proceedings for di-vorce. The same Utah Legislature, from the acts of which I have quoted, passed an act providing for di-vorces, under which one Maria Louise Clayton, daughter of Amasa Lyman, who was taken as a sixth wife, by William Clayton, in Oct., 1868, applied to our jurist for a divorce and alimony. The case was entered and patiently heard by Judge McKean, and although the proceedings are still pending, alimony has been allowed and paid over. Lawyers declare it to be a remarkable condition of judicial obliquity, which so far construes polygamy into marriage in the one case, as to render divorce, with alimony, the appropriate remedy, and in the other— that of Hawkins— into adultery, to be punished by three years' imprisonment and an appropriate fine. Clearly, if the polygamous connection is marriage, no adultery has been committed; if it is not marriage, then no di-vorce is demanded, and the woman instead of receiving alimony, is liable to prosecution for fornication. As adultery can only be charged by a wife, under the stat-ute quoted ( Sec. 31), and as these misguided Mormon wives don't seem to think they have much to complain of, the identical offense is, in the absence of the wife's testimony, treated as " lascivious cohabitation," to" which, a lesser penalty is attached ( Sec. 32). The Court thus practically denies the existence of polygamy, by declar-ing the polygamist to be an adulterer at the dictum of one of the wives. The woman whom he marries and by whom he bears children are not his wives, but his para-mours, provided that no one of them complains; while if one of these fragmentary female appendages desires a divorce from her fraction of the lord and master, her prayer is heard, and the marital nature of the contract thereby recognized!
In still another item does the officer of the law, by his serpentine course, place the Government in the attitude of an adroit persecutor, rather than that of a dignified prosecutor of crime. Chapter 35 of the Statutes of Utah, approved by Gov. Cumming, Jan. 21, 1859, with its amendment, approved by Gov. Mann, Feb. 18, 1870, pre-scribes the mode of procuring grand and petit jurors, and declares that lists shall be made by the Court from among the qualified persons whose names appear on the assessment rolls of the county; that said names shall be apportioned among the different sections of the county, as near as may be, and in such a manner as to secure rotation in the discharge of jury duty among the eligible persons in the county. It further declares that the names thus selected shall be written on slips of paper, which shall be carefully folded to conceal the names, and deposited in a box; and that the requisite number," of jurors shall then be drawn promiscuously from the box. Clearly, the intent of this law. is to obviate the possibility of that odium juris—a, packed jury. But the practice of the pres-ent court is to issue an open venire, which the Marshal takes into the street, and makes his selections from those whose sentiments he is supposed to be familiar with. Of course the verdict of a jury, whose opinions are known, may be predicted with reasonable certainty. It may be doubted whether the reason assigned, that no conviction could be secured were the Territorial law of selecting jurors by lot followed, sufficiently palliates the act. At all events, if the statute is to be set aside in the impaneling, it might, for the sake of consistency, be alike ignored in the matter of challenges. In this re-spect, however, the Territorial law, giving six peremptory challenges to either side, is followed, instead of the Fed-eral statute, which gives the advantage of ten (10) per-emptory challenges to the defense and only two to the prosecution. Thus the jury is made up under a system which sets at naught the local law as being unfavorable to the plan of the court, while the advantage given by that statute to the prosecution is eagerly seized in the important matter of peremptory challenges.
Now this is, confessedly, a bad state of affairs, and one for which some remedy should be devised. To my mind that remedy rests with Congress; To the Mormon mind a possible panacea is found in a change of officials. I do not consider such a change desirable. You cannot im-press a first-class lawyer into service as a judge in a re- mote territory on a yearly salary of $2,500. Our present judges are worthy men, but they need to have their powers and duties more clearly defined. This blind and illegal grappling with great offenses is unworthy of the Republic. Let the Act of 1862, be so amended as to make the recognized and admitted wives of a man his wives for all purposes of the law. Add to this the right of ap-peal, in all criminal cases in the Territories, to the Supreme Court of the United States, in order that a fair hearing may be had and an impartial judgment rendered. In the existing state of feeling, justice to a Mormon is utterly impossible, unless he abjures his faith. To be tried is to be surely convicted. I will not assert that conviction should not follow trial, in every case. These men and women— good citizens in all other respects, it appears— have been guilty of believing in polygamy as a funda-mental principle of their religion. They think they cannot voluntarily abandon it without imperiling the salvation of their souls. If for this they are to be punished, let us inflict that punishment in a spirit of fairness and equity. Let the echo no longer be heard on every hand, Summum jus, summa injuria. Let the rigor of the law be the rigor of Justice, not of op-pression. Give the polygamous people the ordinary chance of the ordinary criminal, and punish their offense under its true title. Let no man be put on trial for adul-tery or lascivious cohabitation, when his offense is really polygamy. Let no judge hereafter have the power to say, as said Judge McKean in his his charge to the jury in the case of Hawkins, who was technically accused of adultery with his wife No. 2, "All Americans know that it is polygamy that is on trial and not lascivious cohabi- tation or adultery."
I do not expect to be called upon to criticise the action of the Utah courts hereafter. Yesterday the newly-ap-pointed United States District-Attorney, the Hon. George C. Bates of Chicago, appeared among us. To-day he was introduced to the court, and uttered his maiden speech. In well chosen words, eloquently pronounced, he de-clared that, with God's blessing, he would perform the delicate and sacred functions of his high office with such fairness, equity, calmness, and candor, with such equal and exact justice toward all the people of Utah, whether Mormon, Gentile, or Jew, irrespective of caste, religion, sex, or sect, as to extort from them all commendation of an eminent English Bishop in his eulogy upon the law: "As that science whose voice is the harmony of the world, whose seat is the bosom of God, the greatest are not above or beyond its power or its process, and the humblest not beneath its protecting arm;" and, with a sagacious out- look to the possibility of such action on the part of Con-gress as I have indicated in this letter, he added, im-pressively, "Accustomed from my youth to regard its ministers upon the bench as engaged in duties not less sacred than of those who minister at the altar of the living' God, I shall bow with deference always to the rulings and decisions of the bench, save only when they are overruled, altered or revised by the supreme judicial tribunal of the Union, or the wise action of an intelli-gent Congress, acting in its capacity as the lawful guardian of its rising ward." In the hearing of sentiments such as these, persons of all shades of religious belief thank God and take courage. It is something to have an experienced lawyer as prose-cuting officer at this important juncture; it is much to have one of high moral character who honors precedents and will not be turned from the strict line of duty by the zeal of the fanatic or the hatred of the bigot; but it is infinitely more to feel that in the officer of the law, we have one who without known sectarian bias can implore God's blessing upon the work which the law commits to his keeping, The Gentile rejoices because he has reason to believe that the administration of the law is in compe-tent hands, while the Mormon is happy in the thought that the reign of terror instituted by embittered men, clothed in a little brief authority, who have sought to place the Government in an unnecessarily offensive atti-tude toward the people of Utah— that this reign of terror is practically at an end.
* * * Salt Lake City, Dec. 1,1871.
THE OTHER SIDE.
HOSTILITY BETWEEN MORMONS AND GENTILES— THE TRIALS— THE COURSE OF THE COURT.
To the Editor of The Tribune.
SIR : A great excitement has been raised re-garding the recent trials and indictments of Mormons, concerning the method and manner of them, and about the general warfare between Mormons and non- Mor-mons. It should be well known to intelligent readers that the two classes have never been able to live at peace with each other. The non-Mormons are simply doing in Utah what they have always done elsewhere-contending for their rights and privileges as citizens of the United States—demanding the recognition of the people as the source of their authority, the rule of the ma-jority instead of that of a priestly hierarchy, republican- ism instead of theocracy, the elimination of the State from the Church, equal taxation, free election by unmarked ballots, obedience to the laws, and deference to the au-thority of the United States, the sanctity of civil oaths, free thought, free speech, free schools, freedom of con-science, the right to life, liberty, and the pursuit of hap-piness, and a decent regard for the opinions and laws of Christian mankind in respect to the relations of the sexes. Imagine a place within the Republic where the negation of all this is made a religion, and a body of our people living there in quiet! Why, then, because we do not do it should we be called bad names?
The Mormons are the aggressors in this matter, and by virtue of their creed, which makes them the common and mortal enemies of mankind. Like the Moslem they offer conversion to the Gentile as the only alternative of destruction. Unless they are in the majority they can-not "live their religion," they say. A religion which must be in the majority in order to exist is not a re-ligion, it is a State polity, seeking expression in a State To retain this majority the Mormons have visited every species of ostracism on those who did not agree with them. This has banded and welded the Gentiles of Utah together in self- defense. The statement that any consid-erable number of them side with the Mormons is false. There may be a difference of opinion as to how best to oppose them. The very few Gentiles who favor them do so from motives of self-interest, chiefly pecuniary. So much in explanation of the hostile attitude of the Gen-tiles of Utah toward the Mormons.
For the Federal authority, well- informed citizens should know that the extipation of Utah polygamy has been the declared national policy ever since the existence of the crime was acknowledged, and that the Federal officials of Utah, with few exceptions, from 1850 to 1870, have clone what they could in furtherance of this policy. Why, then, should those who know better insist that this policy is something new, peculiarly President Grant's or Dr. Newman's, or that a "ring" of Federal officials in Utah have started it for speculative purposes, and in the same breath contradict themselves by affirming that the real speculators of Utah—the dealers in paper mining stocks— are opposed to it. How could the same public policy benefit one set of speculators and injure another? How can the firm but judicious enforcement of the laws fail to benefit all business as well as other in-terests in the long run, especially when such policy is the only effectual means of breaking down the worse than Turkish exclusiveness of the Mormons?
A word, in passing, about mining and mining specula-tion in Utah. Utah produced 5,233 tuns of ore, and 8 1/2 tuns of base bullion in 1870; in 1871 (five weeks from Nov. 23, estimated), 11,200 tuns of ore, and 2,400 tuns of base bullion, or, converting the bullion back into ore, in round numbers, 20,000 tuns of ore. And the business began after the era of railroads and the establishment of agri-culture and manufactures, not before, as in the other Territories. The Gould & Curry mine on the Comstock produced 100 tuns of ore a day for seven years—36,500 tuns per year, times the amount produced by Utah this year. This is to show the slight basis for the unpre-cedented flourish of trumpets over the Utah mines, and the excessive inflation of the speculation based upon them; also, the hollowness of the hope so widely enter-tained that the influx of Gentile population, consequent upon their development, will of itself seriously affect Mormonism, unless it strengthened it.
To return: President Grant, his appointes in Utah, and the resident Gentiles of the Territory, are endeavor-ing to do just what their predecessors endeavored to do, neither more nor less. If they are meeting with more success, or seeming to, it is due to a change in the times and conditions, not to a change of purpose or of method. It has been represented that polygamy was dying out of itself when Judge McKean's Court met in September last, and that a half dozen men, more or less, instigated the pending prosecutions against it. This is an assump-tion, purely, in the face of all the probabilities in the case—in the face of all the Mormon leaders say about it, who alone know, and in whose interest the assumption is made. The Mormons do not believe in and practice polygamy for its own sake; they do both because they are told to, and it is their religion, and all of it to do as they are told, without question. The novelty and, I suppose, chief attraction of the Mormon Church or sys-tem is the idea of daily, direct, inspirational communion between its visible head and the Almighty. The word of the head of the church is the word of God to the church, and it is obeyed by good Mormons as though that head were God incarnate. That head (Brigham Young) has never receded on the question of polygamy, by reason of opposition in any shape whatever, one hair's breadth, until since the September term of Judge McKean's Court commenced, if, indeed, he has receded at all.
Ask Wells, Cannon, Hooper, Sharpe, any of the Youngs or other Mormon leaders, and they will tell you that polygamy has never either waxed or waned because of any-thing said, done, or written by outsiders. Indeed, so far from admitting it to be on the decline are these men, that they believe it is bound to become universal in time. They have actually acquired the conviction that it is an improvement on monogamy, Orson Pratt in-sisted on it very recently in a Tabernacle harangue as strenuously as ever he did, and one could see and feel that his Mormon hearers were with him to a soul.
Nevertheless, since the Court met, though never be-fore, there are indications that the Head of the Church is beginning to entertain the idea of that revelation sug-gested to him by Mr. Colfax in 18S5; this is not done as a concession to the few thousand mining prospectors and speculators now in Utah, from whom, hero to-day and gone to-morrow, he has nothing to fear; not in deference to a class of visitors whose only criterion of merit is seeming success, and whose quasi opposition amounts to support; not on account of the inharmonious and fu-tile political action of the Gentiles of Utah; not from fear of the influence of the Godbe schismatics, which amounts to nothing; but it is done as a matter of neces-sity. In other words, if polygamy means fine and im-prisonment without fail, then polygamy has had its day and must be left behind. But they will never put it on that ground. To give up "the basis of their religion" on account of outside pressure would be unfaithfulness. To give it up in obedience to the inspiration which they suppose guides the Church would be another thing.
They have not come to consider the necessity of giving up polygamy without casting about for every possible chance of escape. They have looked both to British America and to Mexico for an asylum, and they profess that they would not hesitate an instant to destroy their fixed property and march away if such were the word. But, whatever may be said of their industry and other homely virtues, they do not seem to be held by con-tiguous States to be immigrants of a desirable kind. They have developed so perfect and powerful a theocracy that they must appear in British America or Mexico rather as invaders than as immigrants.
On the other hand they are pretty firmly fixed at home materially, and with the exception of polygamy and its involvements, politically. The older men can have no desire to further enlarge their households, and repug-nance to polygamy is natural to the young. Polygamy has kept them in a state of war with the rest of the world for nearly 40 years. It has been the prolific source of crime within and without. Their Hickmans and Rockwells have been to them as the regular military force of other States. Whatever killing they have done was not murder, they claim, unless war is murder. Polygamy, and the inequality of condition among men growing out of it, are their chief antagonisms to us. With it would necessarily fall to the ground their pet scheme of universal Church supremacy, their dreams of power, the soaring hopes which have enkindled their zeal and made them formidable. The ambition to sub-ject the world to their dominion having miscarried, they would be left and remain in peace. In fine, it would be so sensible and so much to their interests to give up polygamy, although as they claim "it would be giving up everything," that it seems impossible they should not do so, opportunity offering.
They could not, however, with any show of consistency at all, take an active part in the inception of such a scheme. None of the leading Mormons will acknowledge that the effort said to be about to be made at Washing-ton to open the door of the Union to Utah on condition of the abandonment of polygamy for the future, emanates from the head of the church or from them, and they scout the idea that they would or could be tempted by such a bait to give up "the basis of their religion." "No, not for ten thousand States or ten thousand worlds like this," said one to. me a few days since. But when closely pressed he admitted that if it should be revealed that polygamy had had its day and must be dropped, it would make another matter of it entirely. "The basis of their religion" would then be to abandon polygamy the same as it is now to cling to it, their religion consist-ing in obeying without question what they believe to be the word of the Lord through the Head of the Church.
While they could not well appear to take the initiative in this scheme, and have, therefore, induced outside sym-pathizers to manage it for them, it is very probable, I think, that, if they cannot otherwise escape the pressure now bearing so heavily on them through the courts, they already have already made up their minds to do it in this way if possible. It is this pressure, and nothing else, that has made such a proposition on the part of any-body worth while. When the Cullom bill was before Con-gress. two years ago, it was proposed to them informally, and they flouted the idea. But at that time all the essen-tial machinery of the courts was in their own hands.
A word or two as to the way or manner of these court proceedings. It is assumed that the men who made the law under which Young and others have been indicted, were polygamists, and therefore did not intend it to cover the offenses specified when called polygamy, that being required of them by their religion. The same men in the same statute provided that murder should be pun-ished with death. They held, according to their own published professions that a man who breaks his church covenants justly forfeits his life, and that the only way to save such a one's soul is to kill him. Further, that to perform, this kindly office for him was their bounden duty. Brigham, Wells, and others of them being under indictment for divers and sundry murders, when put upon their trial, will or will not plead that the men who made the statute punishing murder with death did not intend it to apply to the deed when done in pursu-ance of Mormon Church doctrine—"to save the victim's soul"—and that, therefore, to convict them under said statute would be an abuse and perversion of justice. If they are consistent, they and their friends will make this plea. It is as good in the case of murder as in that of polygamy. Nor will they be likely to state upon what principle a legislative body punishes as a crime in one man what is recognized as religion in another, either in the polygamy or murder cases.
The fact is, the Utah statute punishing offenses against marital chastity was regularly enacted by competent Territorial authority. The courts were established and are maintained to enforce the laws of the Territory when not in conflict with the Constitution or laws of the United States. Said statute is not in Conflict with them. What else could the Court do than enforce it? It is plain and unambiguous in its terms leaving no room for interpretation or construction. It interprets itself. No two men can candidly differ as to its mean-ing. If in such a case a Judge has the right to interpret the law to mean other than what it clearly says, then it is not binding on him at all; he can set it aside, and, in effect, make law to suit himself. It seems to have been forgotten in some quarters that a judge is not a legislature.
Salt Lake City, Dec. 6, 1871.
