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Charles S. Zane...Apostle of the New Era
Charles S. Zane...Apostle of a New Era
BY THOMAS G. ALEXANDER
Until recently, the interpretation of Utah territorial history has suffered from two conflicting conspiratorial points of view. Some writers have seen in the tremendous economic, political, and social power of the Church of Jesus Christ of Latter-day Saints a conspiracy against the United States government; and others have viewed congressional enactments and the actions of territorial officials as a conspiracy against the Mormons' basic rights of self-government, economic freedom, and religious liberty. A superficial examination of such issues as congressional legislation, the disfranchisement of 12,000 voters, the filling of the penitentiaries with polygamists, and the church's loss of property could support either conspiratorial view.
In a recent study one historian, himself not a proponent of either conspiratorial viewpoint, justifiably called the period of intense conflict "The Raid." Though a federal marshal may undertake a raid, the consequences of the arrests which he makes depend upon the trial judge.
If the judge fails to support the marshal and the prosecuting attorney and allows criminals to return to their former pursuits without punishment, the law is but a dead letter. One feature which characterized the last six years of the 1880's was the strict enforcement of the law, and if any one man was more responsible for this enforcement than any other, that man was Utah territorial Chief Justice Charles Shuster Zane.
Because of the conspiratorial viewpoints, many who have investigated the period between 1884 and 1892 have emphasized the conflict between the anti-Mormon legislation which Zane and his colleagues enforced and Mormon political, social, and economic institutions. This emphasis on the enforcement of the Edmunds Act (1882) and the Edmunds-Tucker Act (1887) has subjected Zane's work to two irreconcilable interpretations, and the real impact of his service has been lost in excessive praise and criticism.
From their analysis of Zane's work, B. H. Roberts and Orson F. Whitney, both contemporary Mormon historians, interpreted him as a man with a deep-seated prejudice against the Mormon people. They summed up his enforcement of the anti-Mormon legislation by saying,
On the other hand, some contemporaries of Zane describe a man who bears little resemblance to the ogre whom Roberts and Whitney observed. R. N. Baskin, a prominent Gentile lawyer and former Liberal party candidate for Congress, writing to refute the assertions of Whitney and others of his pursuasion, said that Zane:
The Salt Lake Tribune, a Gentile newspaper, said that he
Was this a Dr. Jekyll and Mr. Hyde about whom the sources spoke? Certainly both viewpoints cannot be correct, and the old cliche that the truth lies somewhere in between does not aid us in assessing Zane's real contribution. Perhaps it is impossible to find the truth about a man so shrouded in controversy, but the historian neglects his duty if he does not try. This article will attempt to assess the work and character of Charles S. Zane and his impact on Utah between 1884 and 1892.
Although Charles S. Zane came from a New Jersey Quaker background, he himself was an agnostic. He was born on March 3, 1831, in Tuckahoe, Cape May County, New Jersey; and in his mid-teens he left home to become a grocery clerk and livery stable owner in Philadelphia. After moving to Illinois in 1850 at the behest of his brother who had preceded him, he studied at McKendree College, Lebanon, Illinois, from 1852 until 1855. He taught school for several months; then, because Abraham Lincoln's activities as a captain in the Blackhawk War impressed him, at the age of 25 he applied at the law office of Lincoln and Herndon to study law. Although they were unable to accept him, William H. Herndon gave Zane a letter to James C. Conkling under whom the young lawyer studied until he was admitted to the bar in 1857. He was an early Lincoln supporter, and after Lincoln was elected president, he became Herndon's law partner. Zane had already married Herndon's niece, Margaret Maxcy, in 1859, and when Herndon retired Zane formed a law partnership with Shelby M. Cullom until 1873 when he was elected circuit judge.
Any man is, in a large measure, the sum total of his experiences, and Zane's past had shaped him for the service which he was to perform on the Utah bench. Unlike so many federal territorial appointees, he was no disappointed office seeker. As a city, then county attorney, and later from 1875 to 1883 as an elected judge on the Fifth Circuit in Illinois, he had been so successful that some doubted whether he would accept the appointment to Utah. Through the personal influence of his old law partner, Senator Shelby M. Cullom, President Chester Arthur commissioned Zane chief justice of the Utah Supreme Court July 5, 1884. In August 1884 when he left for Utah, the lawyers and dignitaries of Illinois honored him with a farewell dinner and a letter praising him for the services he had performed. He arrived in Salt Lake City August 23, 1884, and Governor Eli H. Murray assigned him to the Third Judicial District September 1, 1884.
One could, of course, take the position that the lawyers were pleased to see Zane go to Utah for reasons other than their joy at the fine service he had rendered. Perhaps they too thought him partial and prejudiced. After all, the only justifiable appraisal of the worth of a judge must be based on all the decisions which he made, not merely on a selected group of them. If his decisions evince a prejudice or if he were unfair and partial in his administration of justice, one must then accept the judgement of Whitney and Roberts, if not, a new evaluation must be made. Do Zane's decisions reveal a man with a well-developed humanitarian attitude and social consciousness, or do they show a man who harbored intolerant feelings, desired to suppress a particular religion, and disregarded contestants' legal rights?
Only six months after taking the bench in Utah, Zane expressed his attitude toward legal rights in a case involving the Union Pacific Railroad Company. John E. Dooly, trustee for the stockholders of the Utah Eastern Railroad Company, complained that the Union Pacific had gained control of the Utah Eastern and was forcing the directors and officials of the Eastern to disregard the interests of the stockholders. Zane, after considering the allegations of both disputants, ruled that "all these parties should be permitted to litigate their rights"; and because investigation was necessary to discover whether Dooly's complaints were true, he appointed a receiver pending completion of the investigation, thus assuring the protection of the rights of all parties concerned.
Besides trying to secure everyone's rights in such litigation, Zane sought to protect Utah citizens against corporations from outside the state. In April 1885 Zane ruled that, although a corporation was not resident in the territory, to protect the rights of citizens "a legal service may be made on any agent or manager of a foreign corporation doing business in the Territory."
Judge Zane did not confine the protection of the law to persons who were hurt financially by corporations. Individuals who were injured because a company was negligent in providing proper safety devices or working conditions for its employees also received the protection of the courts.
The Union Pacific Railroad appealed a decision involving safety precautions from Zane's Third District Court to the Supreme Court of the territory. A unanimous court consisting of Henry P. Henderson, an "urbane and gentlemanly" lawyer from Michigan; Jacob S. Boreman, a former judge of the court of common pleas and state legislator from Missouri; and Zane sustained the chief justice's lower court decision.
While working in a Union Pacific coal mine during May 1885, William C. Reddon was paralyzed by a roof cave-in. Reddon sued the company, and Zane's court awarded him $20,000 and costs as compensation. According to testimony during the trial, the mine workers had informed the mine superintendent, Thomas Thomas, about the danger of a cave-in caused by pressure in the coal veins; but he had neglected to correct the hazard by properly shoring the mine. Thomas told Reddon to work in the risky area. Although Reddon protested the order, he went anyway because he had been instructed to do so. The court ruled that the disaster had been caused through the negligence of the company.
Later Zane held the Southern Pacific Railroad Company responsible for an accident after it failed to install safety intersections. In writing the opinion which sustained the decision of the district court, Zane allowed damages to the widow of a conductor who was killed after he caught his foot in an unsafe intersection while trying to couple two cars. The company argued that the conductor had no business coupling the train, but the court held that he might do so because the brakeman could not make the connection and the conductor had earlier been a brakeman. Sustaining Zane in a unanimous opinion were Thomas J. Anderson, a former assistant commissioner of the General Land Office in Washington who replaced Boreman on the bench in 1889, and John W. Blackburn, a Utahn who joined the court late in 1889.
If property interests appeared to contradict the public good, Judge Zane was willing to overrule the rights of property. Railroad land stood in the way of John S. Houtz and a group of sheepmen in their drive to 350,000 acres of open range land. Though the railroad had forbidden the sheepherders to cross its property, Zane ruled that in order to reach the open range, they had a right to cross the unfenced land. A unanimous Supreme Court sustained his Third District Court decision. It is entirely possible that this ruling was a new precedent, as most of the others were not, because no other decisions were cited in the opinion.
Infringement upon the rights of one individual by another did not go uncorrected, and Zane sided with Boreman and Henderson in overturning the decision of a lower court in a claim jumping suit. Three men entered an agreement to open a mine in Summit County, and after digging about 280 feet they struck a silver lode. One of the three and an outside man filed a claim to the mine and then offered to hire one of the original prospectors to work for them. This prospector refused to accept the offer of the alleged claim jumpers, and he and an associate instituted a suit to restrain the new company from issuing stock. The lower court favored the alleged claim jumpers, but Zane joined with a unanimous Supreme Court to overrule the decision.
From these decisions it should not be inferred that Zane always took the part of every downtrodden and unfortunate person. If justice appeared to be on the other side he did not challenge the law merely to favor one individual over another. One such case had to do with "a few hundred squatters" on land in Park City. The settlers took no legal measures to claim the land as they might have done under the townsite law, although they had had sufficient time to do so. The situation was further complicated because the land was in section 16 and would normally have been reserved for the schools. When the patentee applied for the land, this fact was not known, and the land office issued him the title. Because he had gone through legal channels and the patent had been confirmed by the government, the court ruled that even though the property was in section 16 and inhabited by the squatters the patentee should retain it. In this case Zane and Orlando W. Powers ruled that clear property rights had protected a person against the claims of both government and squatters.
In other cases where public corporations infringed upon individuals, the courts protected the citizens against the cities. A group of neighbors built an irrigation ditch near the property of Samuel Levy and connected it to a Salt Lake City canal. The neighborhood ditch overflowed, and Levy sued the city for the damage the flood caused to his basement. Although the city did not build the ditch, the watermaster had turned the water into it, and the care of the water was a trust given to the city by its charter. The Supreme Court, speaking through Henderson and supported by Boreman and Zane, upheld the Third District Court decision that the city was responsible for the damage.
Zane rendered the majority opinion in a Supreme Court decision reversing a district court ruling on property rights. Although William Daniels' farm was within the municipal limits of a city as defined by the legislative charter, it was two and one-half miles from any civic improvement and Daniels himself maintained the road to his property. Daniels was convicted of failure to return his property tax list, but the Supreme Court through Zane and Anderson reversed the ruling of the lower court.
In Zane's decisions concerning personal rights and corporate responsibility, there is little evidence that he tried to hurt any particular group of people. Rather, he continually supported individuals who fought to maintain their rights and obtain compensation for damages done to them. The courts under Zane's leadership required corporations to pay just remuneration for their abuses, supported mechanics' lien laws, and protected individuals against both public and private infringement of their rights. These decisions show a humanitarian attitude and a well-developed sense of social justice rather than a vindictive spirit.
If Judge Zane evinced a just regard for the individual in these cases, perhaps his injustice lay in another field. The Gentile press said that any local (Mormon) public school was a "Sectarian School where Treason is Taught." If Zane were really interested in harming the Mormon cause, one might profitably search his decisions relating to these schools for evidence of prejudice against a particular group of people.
Less than two weeks after Zane came to Utah, the Salt Lake Tribune greeted with approbation a vote against levying a new tax to erect a school building in the Salt Lake Eighth Ward. Two weeks later, the Mormons of the Seventh Ward passed a tax assessment for a new building in their district by 105 to 38. Seventh Ward Gentiles objected to the decision and brought the case before Zane because citizens other than taxpayers and registered electors had voted.
The Gentile press accused the Mormons of being un-American, and said that if they had been in the minority they would also have opposed the schools. Judge Zane ruled on September 18, 1884, that the Gentiles, providing they could prove that sectarian doctrines were taught in the school, might have the tax disallowed. During the trial, both sides introduced contradictory testimony. The Gentiles presented evidence to show that legislative appropriations were used to pay for some Mormon projects such as printing books in the Deseret (Mormon phonetic) Alphabet and that the church wielded a great amount of temporal power. The Mormons claimed that the teacher of the school, Herbert Van Dam, though a Mormon, was not in good standing in the church; and Dr. John R. Park, president of the University of Utah (then Deseret) testified that he had made a study of the schools in 1879 and found no sectarian doctrines taught in them. Dr. Park also testified that he had taught in the public schools before he had joined the Mormon Church.
On January 8, 1885, Zane returned a ruling which shows no trace of malice toward the Mormon people. He said that the Gentiles had not presented sufficient evidence to show that Van Dam taught sectarian doctrine in the Seventh Ward School. While he expressed the opinion that such doctrine was taught in some schools, his verdict reveals a highly developed sense of social values and a belief in the perfect ability of man:
The Gentiles were predictably disturbed by the decision which they called "clearly a Scotch verdict." Zane's decision was perhaps the more incomprehensible to them when it is noted that Zane had, himself, made the statement that he did not believe that the Mormon doctrines were Christian. This belief did not prohibit Zane from supporting the schools even though "Mormons are employed to teach the public schools."
Judge Zane reaffirmed his stand on schools in December 1886 when the Gentiles attempted to block a tax levy by the trustees of the Tenth Ward School. Mormons greeted the decision by saying that while Zane had an anti-Mormon "bias" the Gentiles had failed to "count Judge Zane in on the side of the law and of the people acting under its provisions."
An opinion which he read in the territorial Supreme Court in 1889 seconded by Judge Anderson, clearly shows Zane's support of the public schools. Utah Central Railroad Company owned land 25 miles from a Millard County school, and the school district extended its boundaries 15 miles to include the railroad land. The railroad protested inclusion because its land derived no immediate benefit from the school district. Again showing his sense of social awareness, Zane said,
Just as in the cases involving individual rights, it would take a vivid imagination to interpret these rulings as showing an anti-Mormon bias. It appears rather that Zane attempted to improve conditions in the territory, because of his belief in progress and his social awareness, by allowing the local citizens to provide for their educational needs.
The Mormons had charged some of Zane's predecessors such as Chief Justice James B. McKean with trying to undermine local government. Surely, if Zane were really trying to eradicate Mormonism as a religion, he would have attacked the local government which was almost exclusively controlled by Mormons. This was not the case. Zane arrived in Utah in late August 1884, his first court session started in early September, and by December he had gained the reputation of favoring strict enforcement of city ordinances.
In these cases involving city ordinances Zane was careful to protect the rights of the accused person. On March 10, 1885, Charles Honey came before Zane to petition for a writ of habeas corpus because he was to be prosecuted for selling liquor without a license. Zane ruled that Honey might be prosecuted, but that the indictment was improperly drawn. It should have been in the name of the people rather than the city because a territorial ordinance prohibited the same offense and both authorities might have prosecuted Honey. To protect Honey from two suits the territorial statute had precedence.
Where the legislature had given the city direct authorization to draft such ordinances, it had a clear right to prosecute offenders. Zane made this point clear 15 days after the Honey decision when Moses Brunnow petitioned for a writ of habeas corpus. In this case Tooele City, by its charter, had been authorized to "license, regulate, restrain or prohibit" the sale of liquors. Thus, Zane ruled, the city had a right to prohibit the sale of liquor if it wished, and it might prosecute in its own name persons who failed to obey the ordinance.
This ruling brought a strange response from the Gentile press which took the position that if prohibition were legal, then the city council should prohibit rather than license the saloons, not because it would be better for public morals, but because the city corporation was able to support itself on such license fees. "If the enormous revenue collected on liquor licenses, and as fines imposed upon women of ill repute and gamblers, was cut off, the Mormon church would suddenly find itself short of ready cash," the Tribune said.
A case involving a federal deputy marshal again demonstrated Zane's strict adherence to law. The Salt Lake City Police Department charged Marshal Oscar Vandercook with breaking a law which prohibited resorting to brothels for prostitution, when he was allegedly caught in bed with a prostitute. Zane, while denying Vandercook a writ of habeas corpus, ruled that the deputy could not be tried under a city ordinance because the city charter gave the council no right to pass such ordinances; but that he might be tried under a territorial statute.
This seemingly innocent alleged attempt of a United States deputy marshal to avail himself of the services of a Nymph de joi ended in a charge of conspiracy which touched nearly every officer on the Salt Lake City police force. On December 7 the grand jury reported that its investigation uncovered evidence of a conspiracy between Salt Lake City police officers and local prostitutes. Brigham Y. Hampton, collector of license and member of the Salt Lake police force, was indicted and brought to trial. In the course of the trial the prosecution proved that Hampton and other police officers had hired prostitutes — Hampton called them detectives — to report on people who visited them professionally. One of the prostitutes claimed that Hampton offered her $300.00 if she were able to compromise the governor. Hampton's conviction, called "Buncombe" by the Mormons, was sustained by the territorial Supreme Court.
Judge Zane supported the cities not only in their statutes involving gambling, prostitution, and liquor licenses, but also in those involving prizefighting. In assessing Zane's impartiality, one should remember that there were no Gentiles in the city government of Salt Lake City until 1888. Zane was not willing to have a mockery made of the laws, and even Roberts said that the Hampton affair was a "regrettable thing done on the part of the Latter-day Saints." Laws had to serve a valid purpose of protecting the welfare of the community, and were not to be construed to aid in any partisan controversies.
Besides his decisions in cases involving individual rights, the schools, and city ordinances, another gauge of Zane's hostility toward the Mormons was his attitude toward voting and elections. By provisions of the Edmunds Act and the Hoar Amendments of 1882, the Utah Commission disfranchised 12,000 Mormons, and Governor Eli Murray appointed 174 officers who normally would have been elected. The Mormons, of course, protested this action as an infringement of their right to home rule, and cases involving both voting qualifications and the right to offices came before Zane and his colleagues.
One of Governor Murray's appointees was Uriah J. Wenner whom the governor selected in September 1882 to replace Elias Smith as probate judge of Salt Lake County. Smith, a prominent Mormon, refused to relinquish the office; and on September 9, 1884, Wenner instituted a suit for $6,000 plus 10 per cent interest which he claimed Smith had earned for performing the duties of probate judge. Smith denied that he had earned more than $3,300 and said the office was his by the right of election. Zane's decision, which was later sustained by the territorial Supreme Court, affirmed Governor Murray's right under the congressional statute to appoint Wenner to the office because Congress' power over the territories was plenary.
Governor Murray also filled the offices of territorial auditor of public accounts and territorial treasurer with Gentiles replacing two prominent Mormons, Nephi W. Clayton and James Jack. The Deseret News was, of course, disturbed when Zane sustained Governor Murray's action. The Deseret News said that:
The News also accused Zane of disregarding the public will and "dancing to the music" of anti-Mormons. In these decisions as in others which have been considered, it is apparent that Zane was merely sustaining congressional law. The United States Supreme Court had already ruled that Congress had full power over the territories, and if its power were complete, surely it had a right to declare in what manner territorial officials were to be chosen.
Some of the other decisions which Zane made with regard to elections and voting demonstrate that his main interest was in favoring neither Gentiles nor Mormons but in upholding the law. Zane showed his impartiality in election cases which he decided in September 1890. The election held August 4, 1890, between People's (Mormon) party candidate John H. Rummel, Jr., and Liberal (Gentile) party nominee Hyrum Page was close. Voters were required to write in the name of the candidate whom they chose, and many of the electors who selected the Mormon nominee wrote in the name J. H. Rummel, as well as John H. Rummel, and J. H. Rummel, Jr. Though, as the Gentiles contended, it might have been true, that the citizens were voting for two or more persons, Zane ruled that it "would be a very unreasonable position." The Mormon press greeted Zane's decision happily because to them it was a defeat for "the 'Liberal' tricksters."
The school elections held July 14, 1890, also gave Judge Zane a chance to treat the Mormons fairly. According to the election returns, P. L. Williams, Liberal candidate, defeated Richard W. Young, People's party nominee; but Young challenged the vote by claiming that one of the Liberal election judges, William J. Allen, in collusion with Liberal party leader, H. S. McCallum, had stuffed the ballot box. Of 680 votes cast in all districts, Williams received 341 while Young got 339. But at the polling place where the alleged fraud took place, Williams polled 154 and Young garnered 128. During the trial, testimony showed that Allen switched ballots during the voting and "142 persons . . . testified (or that it was admitted would testify) that they voted for Young." Besides deciding that Young should have possession of the office, Zane ordered the grand jury to investigate Allen and McCallum with the possibility that they might be indicted for election fraud.
In December 1889 Young, then secretary of the People's party, together with Heber M. Wells, party vice-chairman, had already complained to the Utah Commission that McCallum, then registrar of the first precinct in Salt Lake City, had refused to register Mormon voters. They averred also that registrars in the second, third, fourth, and fifth precincts had also declined to register Mormons. McCallum was apparently never convicted.
The entire problem of registering Mormon voters was a topic of heated discussion in both Gentile and Mormon circles. The United States Supreme Court declared, at the same time ruling congressional power in the territories plenary, that polygamists could not be allowed to vote. Though Gentiles, for political and social reasons, wanted the term polygamist construed broadly under the Edmunds Law, the Supreme Court disappointed them by ruling that only practicing polygamists could be disfranchised. If Zane were really aiming his hatred at "one class of offenders" he could be expected to support the Gentiles in their attempts to disfranchise Mormon voters.
A resolution to the issue came in November 1889, when Gentiles objected to the registration of a former polygamist. William B. Bennett appeared before H. H. Crandall, deputy registrar for West Jordan on May 13, 1889, to take the oath of election in order to vote in the coming election. He admitted that he had formerly practiced polygamy, but said that he had obtained a "church divorce" from his polygamous wife. The Gentiles objected to his registration and brought the case to court where Bennett's attorney claimed that because the relationship was "illegal, the citizen, by his own act could dissolve it." The challenge to Bennett's franchise was taken up by Liberal party attorney and ex-Justice Orlando W. Powers who contended that if Bennett were allowed to vote under such conditions, anyone could obtain a "church divorce" and all of the 12,000 disfranchised polygamists could then vote. In the ultimate sense, Powers argued, Bennett was still married because the polygamous union was a "celestial marriage" and as such completely valid in the eternity. Zane ruled that a broad construction of the term polygamist was unwarranted and that the pertinent question was "whether these parties have separated and in good faith dissolved the relationship." He could think of no better way to end such a marriage than the way in which Bennett had accomplished it. Zane admonished Powers to confine the discussion "to earthly matters and let the hereafter alone."
For a period of almost a year between July 1888 and May 1889, Elliott Sandford, a former New York Supreme Court referee, whose appointment the Mormons had urged upon Grover Cleveland, replaced Zane as chief justice of Utah. The court during that period was in the middle of the complex litigation confiscating the property of the Mormon Church for the benefit of the common schools of the territory as provided in the Edmunds-Tucker Act. Although the schools had been put under the supervision of an appointed commissioner, Zane had originally opposed the reversion of the property to the government on legal grounds. This original reservation to the escheatment did not stop Zane from trying to protect the property from alleged spoilation by the receiver. Considering Zane's past record of support for education it is not surprising that he entered the case on behalf of the school trustees.
Zane entered the suit in November 1888; shortly thereafter in March of 1889, he was joined by several Liberal leaders who also complained that Frank Dyer, U.S. marshal and receiver of the church property, demanded excessive fees and compromised on too much property. Even the Deseret Weekly, while criticizing Zane for trying to protect the "doubtful escheatment," admitted that Dyer and his attorneys, P. L. Williams and George S. Peters, had asked for "abnormally swollen" compensation. Dyer's compensation claims were subsequently reduced and in July 1890 he was replaced as receiver by Henry W. Lawrence, an apostate Mormon. Dyer was found not guilty of fraud, but testimony and documentary evidence at the trial showed that he had made compromises for some of the property. Although part of the settlements had been authorized by the Supreme Court, Zane's entry into the suit was to protect the interest of the territorial schools. Dyer's two attorneys, P. L. Williams, territorial superintendent of district schools, and George S. Peters, United States district attorney, were clearly interested in their "swollen" fees, and someone needed to protect the schools' interests.
With the church escheat cases as with the other cases which have been investigated thus far, Zane's motives were above reproach. By June 1889, when Zane was about to resume his place on the Supreme Court, even the Deseret Weekly admitted that Zane had been a "good and able judge when not excited on the one [the Mormon] question." What other position could it take? Zane had protected individual rights while at the same time securing order by sustaining the cities in their control of vices such as gambling, saloons, and prostitution. He supported the building of new schools and tried to protect those which the people had already established. In short, Zane in these secular affairs wanted both to protect the public welfare and to secure justice for those accused of crimes.
The questions thus far considered have been basically political, economic, and legal. Though touching the social conflict between the Gentiles and Mormons, they do not probe the heart of the differences. There were other social and religious questions which caused even greater disagreement than schools, elections, and vices, and chief among these was polygamy. Because of his leniency on the polygamy prosecutions the Mormons hated to see Judge Sandford go.
While polygamy was a legal and moral question to Zane, to the Mormons it was a religious matter. Though the Gentiles, as had been shown, used the issue to political advantage through appointive offices and disfranchisement of Mormons, to them it was also a moral and legal problem. Zane realized that the Mormons believed polygamy or plural marriage was commanded by a revelation from God, but to him it was an illegal practice and therefore wrong. He was willing to greet a repentant sinner with mercy, but to the unregenerate, the wages of transgression were punishment.
Strict enforcement of the anti-polygamy acts which were written "in obedience to public opinion . . . based on the moral sense of the American people, and according to their own reason and conscience ..." began upon Zane's accession in September 1884. While convictions had been made before Zane's term on the court, the intensity of the prosecution had never been so great nor was it to become so again. Zane resolved to offer clemency to those who would reject polygamy, and though Gentiles greeted this approach with approbation, the Mormons rejected it vehemently. Mormons believed it an outrage to a man's religious sensibilities to ask him whether or not he planned to live his religion.
Although before October 1890 most Mormons refused the mercy of the court, true to his word Zane offered clemency to those who promised henceforth to obey the law. An outstanding case involving compassion was that of Bishop John Sharp of the Salt Lake City Twentieth Ward. A man of both religious and business prominence, Sharp was general superintendent of the Utah Central Railroad, resident director of the Union Pacific, and chairman of the Salt Lake committee organized to defend Mormons charged with polygamy. The Gentile press said he was "RESPECTED BY ALL CLASSES."
Sharp was indicted for illegal cohabitation and brought to trial in September 1885. He pleaded not guilty, but after he changed his plea to guilty, Zane, who could have fined him and sentenced him to prison, merely fined him. Although the Gentile press complimented Sharp for obeying the law, the Mormons accused him of cowardice and betraying his covenants. Sharp later said that, though he had never renounced his religion, he had been ostracised for accepting Zane's offer of clemency.
While Zane was willing to be lenient to those who promised to mend their ways, those who did not were fined and imprisoned. Zane also tired of listening to long explanations of disobedience to the law, particularly if they were based on the involved citation of biblical precedent. If this is what Whitney and Roberts meant when they said Zane was unfair to some classes of offenders, perhaps they were right; on the other hand, his main interest was in enforcing the law, not in hurting people, as the Sharp and other similar cases showed.
One of the major reasons for the ineffective prosecution of polygamy before Zane came to Utah was that grand juries composed of Mormons would not indict one of their brethren for an offense which they considered divine and legal. Mormons, constituting a majority of the citizenry, naturally composed most of the juries. Although under the Edmunds Act, polygamists could be excluded from juries trying polygamy cases, it was a moot point whether they could be excluded from grand juries which investigated all types of cases.
Zane, in order to see that the law was obeyed, allowed the district attorney to keep the Mormons off the grand juries. In September 1884 he permitted District Attorney Charles S. Varian to challenge prospective grand jury candidates if they believed in polygamy. This procedure quickly exhausted the names on the jury rolls, and more were drawn. After these were used Varian called for new jurors, and Zane allowed him to empanel the grand jury on an open venire. Although the Mormons believed Zane had cheated them, he ruled that the open venire was necessary to provide offenders with a speedy trial. With all the names drawn from the rolls, none would have remained to hear cases of those whom the grand jury had indicted. While this method was unpopular with the Mormons, it was accepted by the other justices, and between 1884 and 1893, there were 1,004 convictions for unlawful cohabitation and 31 for polygamy.
A major issue in the prosecutions was whether the wife of a person accused of polygamy could be forced to testify. Zane committed several Mormon women to the penitentiary for refusing to answer questions, and he ruled that it was necessary for a wife to testify against her husband because any husband who took a polygamous wife injured the existing marriage relationship. According to Zane, in order to protect the wife from this injury, she must be required to testify. In at least one case, however, the territorial Supreme Court overruled the contention that the wife must testify against her husband.
In his zeal to see that unrepentant offenders were punished, Zane made some rulings which the United States Supreme Court would not sustain. He ruled, for instance, that polygamy indictments could be divided into separate short periods of time and convictions made for each period. This so-called segregation of offenses could not be accepted by the higher court, and it issued a writ of habeas corpus to Lorenzo Snow whom Zane's court had convicted in this manner.
The issue of the Mormons being admitted to citizenship shows Zane's attitude in another area of conflict. All members of the church were not homegrown, and missionaries converted hundreds of new members in Europe and the United States every year. The Gentile attitude was that the foreigners were Mormon dupes and, therefore, disloyal to the United States. They consequently concluded that the Mormon immigrants should not be admitted to citizenship. Although some judges had refused them citizenship before that time, in December 1889, Associate Justice Thomas J. Anderson undertook a full-scale investigation of Mormonism to determine whether Mormon immigrants were worthy of naturalization.
It had been the practice for Gentile lawyers to come into the courts and protest the naturalization of Mormons by asking questions and raising objections. Judge Anderson allowed the Gentile objectors to lead the inquisition. Sworn witnesses testified that the church believed in murder as a doctrine, sought control of the government of Utah, and opposed the United States government. Mormon witnesses, on the other hand, denied these charges, and the church officials themselves issued an "Official Declaration" in December 1889, saying that the church believed in none of these things and that there was no intention on the part of the church "to overthrow the United States or any other civil government." Nevertheless, Judge Anderson ruled that Mormons henceforth might not become United States citizens.
Though Judge Zane sustained his colleague's decision, he also ruled that thereafter no one but the district attorney might enter the courts to question prospective citizens. This assured the applicant fairer treatment than he had heretofore received at the hand of the Gentile lawyers.
On the basis of these social and religious issues alone one might well conclude, as Whitney and Roberts did, that Zane was indeed biased against the Mormon offenders. He used the immense power of the law to convict Mormon polygamists, he refused Mormons citizenship, and he even refused to allow polygamous wives to share in their husbands' estates. One should bear in mind, however, that Zane's major interest was in the enforcement of the law, and when a defendant promised to obey the law, Zane was the first to show leniency.
That Judge Zane was controversial is apparent, and the point of view taken by both the Mormon and Gentile press should be obvious. The Gentiles, though discouraged on some of the school and vice decisions, were basically in favor of everything Zane did. The Mormons, while admitting he was fair on these secular issues, believed he aimed at the destruction of Mormonism as a religion because of his intense prosecution of polygamy.
The Gentiles' overwhelmed minority position further complicated the issues. When Zane entered the territory in August 1884, the Gentiles' only hope for political influence was through appointment; as a result, Governor Murray was extremely popular with the Gentile citizens. Besides its unqualified support of Zane, the Gentile press continually jabbed at Mormons. It constantly prognosticated dissolution of the church and predicted defection of Mormons, especially businessmen; it mocked the Mormon religious practices and continually complained at the political power of the church. While pretending a cocky attitude, Gentiles were often frustrated and angered at their impotence; and some Mormons' activities exacerbated this attitude.
Some incidents were inexcusable, or as Roberts called them "unfortunate"; others were in defense against the Gentile-predicted dissolution. One of the inexcusable incidents was the B. Y. Hampton fiasco, already mentioned. Still others received top billing in the local section of the Tribune. When some of the city officials half-masted the United States flag on July 4, 1885, an imprudent action, the Gentiles interpreted it as an act disloyal to the United States. The Mormons were mourning "The Raid" which was then in progress, but the Gentiles saw no excuse for what they interpreted as an unpatriotic act. The filthiest occurrence took place early in the morning of September 14, 1885, when some unidentified "thugs" threw stink bombs filled with human excrement through the windows of several prominent federal appointees' houses. After these events, the Gentile organ said:
The Gentiles also had reason to fear economic retaliation. The church had instituted earlier boycotts which had caused some of the Gentiles to believe that the protection of Gentile business interests was impossible. When in February and March of 1885, the Mutual Improvement Association announced a boycott of Gentile merchants, the Gentile press derided it; but their earlier experiences with effective Mormon boycotts must have frightened them a little.
Although Zane looked at the problems as moral and legal, the Gentiles saw them as social, economic, and political; and the Mormons believed they were basically religious and political. Zane did not help heal the breach created between himself and the Mormons by calling the Mormon belief in polygamy "barbarian." Even his view that if the church would merely obey the law there would be no problem was greeted as a "cheap and nasty deception unworthy of anyone but a low class demagogue."
It is easy to understand, considering the Mormon past, that church supporters considered the judicial attack on polygamy a political crusade "related" to the Missouri and Illinois persecutions. Mormons believed that "no man-made system could have successfully withstood the combined determined warfare" which had been waged against the church. To them it was a religious and political conspiracy cloaked in a moral and legal guise. For this reason they could praise Zane for his stand on secular issues and condemn him for the polygamy prosecutions. The Mormons also believed they were loyal to the Constitution of the United States, but they construed the Constitution to protect them in their right to worship, including the right of practicing polygamy or of the church to engage in business.
At the height of the tensions caused by the judicial crusade, Zane's reappointment came. Utah citizens sent petitions to President Harrison denouncing and praising him. Many Gentiles favored his candidacy, but to others he had not been strict enough and his reappointment was looked upon as "a misfortune to this Territory." Of course, many Mormons opposed his return to the court. Earlier charges were made that Zane was personally interested in some mining litigation in his court, but Senator Shelby M. Cullom defended Zane, and the ex-chief justice was reappointed and continued to serve until 1893.
It is clear that these were not uncomplicated problems. Both Mormons and Gentiles started from different premises and Zane's legal standpoint fitted the Gentile need at this time. Just how sincere they were was shown by the events after October 1890. These occurrences also help to demonstrate the intensity with which the Mormons held their belief that polygamy was a revelation from God and not a legal question. Beyond the issue of Mormon and Gentile sincerity, Judge Zane's true motives can be ascertained by his actions after October 1890.
On October 6, 1890, an "Official Declaration" was read in the semiannual conference of the Church of Jesus Christ of Latter-day Saints and accepted by the church membership. In it President Wilford Woodruff announced that he was abandoning the practice of polygamy and advised all members of the church to do likewise. While the Gentile press first adopted a wait-and-see attitude and later rejected the idea of Mormon good intentions, on October 7, Zane made the following announcement in court:
The Deseret Weekly regarded Zane's acceptance of the Manifesto as "in unison with the genius of his high and honorable calling . . . ."
Zane continued exactly as before to offer leniency to the Mormons who came into his court charged with polygamy. Because they were willing to renounce the practice, reduced sentences were the rule, and in November 1891 Zane wrote an article for Forum magazine explaining that the Mormon problem was at an end because the Mormons had resolved to obey the law. Zane even signed a petition asking that official pardons be given to the members of the church and sent a letter to the United States attorney general asking that the forfeited bail of George Q. Cannon, member of the First Presidency of the church, be returned. In short, it is evident from Zane's action after the Mormon "surrender" that Zane was interested in obedience to the law and not in eradicating Mormonism.
By mid-1891 the situation in Utah had eased to such an extent that the citizens could organize national political parties. Many prominent Gentiles and Mormons joined together to form the national parties, and the Republican organization was led by, among others, John Henry Smith, a Mormon apostle, and John M. Zane, Judge Zane's son. Judge Zane, himself, gave his blessing to the disbanding of the old religious parties, and in a speech before the Republican convention in July 1891, he complimented the Gentile and Mormon citizens of Utah for this political rapprochement. This action was further evidence of Zane's good will.
Zane's action in accepting the "surrender" of the church on legal and political grounds, while engratiating him with the Mormon press and progressive Gentiles who looked forward to a new era in Utah, was vehemently resisted by a coterie of "Liberals" led by Orlando W. Powers and R. N. Baskin and supported by the Tribune, all of whom had once been Zane's strongest supporters.
The Gentile press played on the economic and political fears of the Utah citizens and tried to discredit Zane and the other new era Gentiles. The Tribune claimed that the Mormons would rule again and Gentiles would be deprived of their political rights. By quoting from statements which Zane and other Gentiles had made before the church's capitulation, they tried to discredit the national parties and the church's and Zane's good intentions. They claimed Mormons would deprive the Gentiles of political rights and economic opportunity, and tried to excite the Utahns by publishing interviews with eastern capitalists who, they said, would never again invest in the Utah projects for fear of Mormon power if the solid Gentile front were broken. Even this movement finally died, however, and R. N. Baskin, who was later elected chief justice of the Utah Supreme Court, said of Zane, "the State should erect a monument in his memory. A more conscientious, impartial, and humane judge than he never sat upon the bench."
Perhaps it is too much to expect objectivity from writers who themselves experience the events which they try to interpret. It is clear that Zane was not "following a line of duty, as God gives him to see" it because he was a "complete agnostic." On the other hand he did not work with the object of "the overthrow of Mormonism as a religion"; he had his chance to accomplish that after the Manifesto when the Mormons broke their solid front. Not a paragon of virtue, he lost his temper at times in court with those who refused to obey the law, but he was as honest in his beliefs as the Mormons were in theirs. He was basically fair in his decisions but as he himself admitted, ruling on polygamy caused much suffering. His duty was clear. As he saw it, he was commissioned to uphold morality and legality as interpreted by the American people and their laws.
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