Utah Historical Quarterly, Volume 48, Number 2, 1980 by Utah Historical Society

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The Federal Influence

UTAH HISTORICAL QUARTERLY ( I S S N 0042-143X)

EDITORIAL STAFF MELVIN T. SMITH,

Editor

STANFORD J . L A Y T O N , Managing M I R I A M B. M U R P H Y , Associate

Editor Editor

T H O M A S J. Z E I D L E R , Assistant

Editor

ADVISORY BOARD OF EDITORS T H O M A S G. A L E X A N D E R , Provo,

1980

M R S . I N E Z S. C O O P E R , Cedar City, 1981 S. G E O R G E E L L S W O R T H , Logan,

1981

P E T E R L. G O S S , Salt Lake City, 1982 G L E N M . L E O N A R D , Farmington,

1982

L A M A R P E T E R S E N , Salt Lake City, 1980 R I C H A R D W . SADLER, Ogden,

1982

H A R O L D S C H I N D L E R , Salt Lake City, G E N E A. S E S S I O N S , Bountiful,

1981

1980

Utah Historical Quarterly was established in 1928 to publish articles, documents, a n d reviews contributing to knowledge of U t a h ' s history. T h e Quarterly is published by the U t a h State Historical Society, 307 West Second South, Salt L a k e City. U t a h 8 4 1 0 1 . Phone (801) 533-5755 ( m e m b e r s h i p ) , 533-6024 (publications). Members of the Society receive t h e Quarterly, Beehive History, a n d t h e bimonthly Newsletter u p o n payment of t h e a n n u a l d u e s ; for details see inside back cover. Single copies, $2.50. Materials for publication should be submitted in duplicate accompanied by return postage a n d should be typed double-space with footnotes a t the end. Additional information on requirements is available from t h e m a n a g i n g editor. T h e Society assumes no responsibility for statements of fact o r opinion by contributors. T h e Quarterly is indexed in Book Review Index to Social Science Periodicals, America: History and Life, Combined Retrospective Index to the Book Reviews in Scholarly Journals, 1886-1974, a n d Abstracts of Popular Culture. Second class postage is paid a t Salt L a k e City, U t a h .

HISTORICAL QUARTERLY

Contents SPRING 1 9 8 0 / V O L U M E 48 / NUMBER 2

IN T H I S ISSUE

Ill

MILLARD FILLMORE, UTAH'S FRIEND IN T H E W H I T E HOUSE

WAYNE

JUSTICE FOR ALL O R FOR T H E "ELECT"? T H E U T A H C O U N T Y PROBATE C O U R T , 1855-72

ELIZABETH

"GOOD GUYS" VS. "GOOD GUYS": RUDGER CLAWSON, J O H N SHARP, AND CIVIL DISOBEDIENCE IN NINETEENTH-CENTURY U T A H

JAMES

UTAH'S EXPERIENCE W I T H T H E DESERT LAND ACT A. RAY OLPIN AND T H E POSTWAR EMERGENCY AT T H E UNIVERSITY OF U T A H

STEPHEN

ELINORE

HINTON

112

GEE

129

ALLEN

148

STATHIS

175

PARTRIDGE

195

BOOK

REVIEWS

207

BOOK

NOTICES

215

T H E COVER The badge of U.S. Marshal Elwin A. Ireland who was assigned to Utah Territory in April 1882. Ireland helped make the Edmunds Act effective by arresting polygamists such as Rudger Clawson. USHS collections.

DOROTHY HOOBLER and T H O M A S HOOBLER.

Photographing

the

Frontier

A N N HINCKLEY COSTELLO

H. HEUTERMAN. Movable Type: The Biography of Legh R. Freeman . . . MURRAY M.

207

THOMAS

DONALD E. WORCESTER.

The

Eagles of the Southwest

MOLER

208

FONTANA

209

Apaches:

BERNARD

Books reviewed L. M A K I N S O N . Greene & Greene: Furniture and Related Designs

PAUL

L. ANDERSON

210

Hard Rock Epic: Western Miners and the Industrial Revolution, 1860-1910 . . . . P H I L L I P

DRENNON THOMAS

212

T. SMITH

213

MERRILL D. BEAL

213

RANDELL

MARK WYMAN.

BELTRAN PARIS WILLIAM A.

as told to DOUGLASS.

Beltran: Basque Sheepman of the American West . . . . BRIGHAM D. MADSEN. The Sacajawea's People

MELVIN

Lemhi:

In this issue . . . Few territories felt the federal influence in such a dynamic and lasting way as Utah. During its forty-six-year territorial period, a sweeping reordering of political, social, and religious practices was effected in a turbulent and colorful confrontation that has held an enduring fascination for historians. The articles presented in this issue analyze select aspects of the federal story, with emphasis on the territorial period. Appropriately, a look at the politics and personalities behind the Compromise of 1850, from which Utah Territory emerged, comes first. An important personality, of course, was Millard Fillmore, a president less complex perhaps than the political matrix of his time but whose sense of survival and pride worked to the advantage of Utah. Next comes a study of the territorial probate courts in Utah, a study suggesting that the degree of controversy surrounding these institutions does not comfortably fit their profile of actual performance. The third article deals with federal legislation against, and prosecution of, polygamy. By focusing on the matter of crises of conscienceâ&#x20AC;&#x201D;upright people wrestling with an apparent conflict between secular and religious dictatesâ&#x20AC;&#x201D;the author develops the particulars while guiding the reader into a universal realm. The concluding two articles deal with federal land. One looks at a specific homesteading act as it has found (and might still find) application in Utah's semiarid environment, the other with the transfer of Fort Douglas acreage and other assets to the University of Utah during those months of rapid change immediately following World War II. Differing significantly from each other, they nevertheless comprise in tandem a fitting capstone, suggesting that the federal influence has extended well beyond the "Americanization" issue and has indeed been a pervasive determinant in shaping Utah's destiny.

Millard Fillmore, Utah's Friend in the White House BY W A Y N E K .

HINTON

1850 VICE-PRESIDENT MILLARD FILLMORE succeeded to the presidency of the United States upon the death of Zachary Taylor. The timing of Fillmore's succession coincided with the great debate over territorial expansion and rising sectionalism in America. Part of that controversy involved the political status of the Mormons and their proposed state of Deseret. Fillmore's handling of the Mormons' political concerns won him acclaim in Utah, but America's thirteenth president has not been treated kindly by most professional historians. In 1948 and again in 1962 Arthur M. Schlesinger asked panels of historians and political scientists to rate past presidents of the United States in categories ranging from "great" on one end of the spectrum to "failure" on the other. In the 1948 poll rating twenty-nine past presidents, Millard Fillmore ranked twenty-fourth. Fillmore placed twenty-sixth among the thirty-one presidents considered in the 1962 poll.1 In 1970 Gary M. Maranell conducted a more complex poll that evaluated thirty-three former presidents in seven categories. Fillmore ranked twenty-ninth on prestige, thirtieth on strength of action, twentyeighth on presidential activeness, ninth on idealism, thirteenth on flexibility, twenty-ninth on accomplishments, and thirty-second on amount of information available. Historians had less information about only one president, Franklin Pierce.2 There are but tw7o biographies of Fillmore, William Elliot Grifns's Millard Fillmore: Constructive Statesman, Defender of the Constitution, President of the United States, a eulogistic biography of little IN

THE SUMMER OF

Dr. H i n t o n is professor of history at Southern U t a h State College and a member of the Board of State History. 1 Life, November 1, 1948; New York Times, July 29, 1962. 2 Journal of American History 57 (1970) : 104-13.

Millard Fillmore, the thirteenth president, a Whig, was born January 7, 1800, in New York. Courtesy National Archives.

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scholarly value, and Robert J. Rayback's Millard Fillmore: Biography of a President, a more recent and more objective work.3 Despite efforts by some twentieth-century writers to find parallels between Millard Fillmore's and Abraham Lincoln's rise from a log cabin to the White House, Roy F. Nichols suggests that little is known of Fillmore because there is so little in his life to provoke interest.4 In spite of this assertion there has continued to be some interest in Fillmore among Utahns. It is ironic that in territorial Utah, many hundreds of miles from Fillmore's birthplace in a wilderness cabin in central New York, his name became so revered that a county and the territorial capital were named for him. What occasioned such recognition for one who has been so largely ignored or harshly dealt with by history? Did nineteenth-century Utahns view him as friendly, or were they simply trying to win favors through flattery in 1851 when they renamed Chalk Creek, Fillmore, and designated it the new territorial capital? Was Millard Fillmore friendly to the faraway Mormon colony? If so, what did he do specifically for Utah? And finally, what was his motivation? For answers to these questions one must look to Fillmore's political career and his relationship to Utah's early history. In 1826 a new political movement was creating a stir throughout New York State. Many citizens had come to believe that the ancient Masonic Order was an invisible empire of oath-bound men who were infiltrating the government to the detriment of the Republic. In 1828 Millard Fillmore actively enlisted in the Antimasonic movement and was selected as a county delegate to the party's first statewide convention. A strong strain of idealism guided his action. He was philosophically opposed to this secret order which he felt was a corrupting influence. He would seek to purify government by its elimination.5 Fillmore won the first political race he entered when he was elected to the New York State Legislature as an Antimason in 1829. He rapidly rose in the esteem of party officials, and after moving from East Aurora to Buffalo in the spring of 1830, he became a recognized party leader in western New York. In 1832 he was elected to the United States Congress. During the next twenty years he gave an extraordinary share of his life to public affairs, serving four terms in Congress, becoming New York's first elected comptroller, and running for the governorship of his 3

(Ithaca, N.Y., 1915), (Buffalo: Buffalo Historical Society, 1959). Robert J. Scarry, Millard Fillmore, 13th President (Moravia, N . Y . : Author, 1 9 7 0 ) , p . 1; review of Rayback's biography in American Historical Review 65 (1959) : 142, by Roy F. Nichols. 5 Rayback, Millard Fillmore, p. 3 1 . 4

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native state before being nominated for the vice-presidency in 1848. As a freshman congressman in 1833 he worked within the inner circle of Antimasons and National Republicans to create the new Whig party, which became America's second major party during 1836-54.6 Fillmore's early political career advanced under the tutelage of Whig leader Thurlow Weed. Beginning in 1834, however, Weed began to push the fortunes of William Henry Seward to the neglect of Fillmore. Fillmore grew more independent and began to deny Weed his every whim. When one of his progeny crossed him, W'eed bristled. He treated Fillmore in a cavalier manner, and jealousy and rivalry developed within the New York Whig party.7 Little could anyone have known in 1834 how much this developing rivalry would one day benefit the newly founded Mormon faith. In the twenty years from Fillmore's entrance into the Antimasonic movement until he was elected vice-president several events transpired that by 1848 were beginning to converge as salient political issues. In 1830 Joseph Smith had organized the Mormon church in New York. From there its headquarters were moved to Kirtland, Ohio, and then to Jackson County, Missouri. Finally, the Mormons, expelled from Missouri, settled in Illinois, ultimately making their way to Nauvoo. In 1844 their prophet and founder was murdered, and shortly thereafter the Mormons were again forced to move, this time settling in the Great Basin in 1847. As the Mormons were making their trek westward, the United States entered the Mexican War. On February 2, 1848, the Treaty of Guadalupe Hidalgo was signed ending the conflict and ceding California, New Mexico, and the Mormons' princely domain, which they called Deseret, to the United States. In the meantime, a great controversy had arisen in 1846 over Pennsylvania Congressman David Wilmot's proviso stipulating that slavery should never exist in territories that might be acquired from Mexico. Because of the issue of slavery in the territories, the Whig party in 1848 adopted a stratagem to nominate a Southerner untainted by antislave heresy. Zachary Taylor, a popular general and sugar planter from Louisiana who had gained fame by leading an American army from victory to victory in the Mexican War, met the requirements. Millard Fillmore was personally opposed to slavery, but with an eye to the party's

6 Deseret News, M a r c h 9, 1874; Frank Freidel, "Profiles of the Presidents," Geographic 127 ( 1 9 6 5 ) : 110. 7 Rayback, Millard Fillmore, p p . 8 2 - 1 0 6 .

National

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success would neither castigate nor reject a Southern Whig. A stampede to Taylor secured his nomination on the fourth ballot.8 Fillmore, who had openly sought the Whig vice-presidential nomination in 1844 only to be thwarted by Weed's and Seward's manipulations, had not made a move to urge his own candidacy in 1848. But John A. Collier, the most prominent member of the New York delegation, did.9 Adroitly identifying himself with the anti-Southern faction, he announced he had a peace offering to suggest, which if accepted, would reconcile the supporters of Northern candidates and prevent a fatal party breach. To everyone's astonishment he placed Fillmore's name in nomination for vice-president. Collier's perfect timing produced the desired effect, and Fillmore was nominated on the second ballot.10 Whatever Fillmore thought of the party's Southern candidate, he did not say. His future and that of the Whig party were tied to Taylor. His campaign role was to work in party harness to help make Taylor acceptable in the North and to avoid alienating the South. The ultimate victory pivoted on Fillmore's home state of New York. For his role the vice-president-elect should have earned the gratitude of Taylor and the Whig party. However, Weed and Seward, who had earlier attempted to prevent Taylor's nomination, began insidiously to insinuate themselves into the Taylor administration and to shoulder Fillmore aside.11 Weed approached Fillmore in an attitude of reconciliation and asked for his support for Seward in the coming New York legislative caucus to select a United States senator. Fillmore, naively believing that peace in the party was imminent and necessary, encouraged his friends to accept Seward. With this support Seward won and systematically began to destroy Fillmore's position in the administration and to curtail his patronage influence. As Seward worked his way further into the confidence of Taylor, Fillmore ceased to be counted as important. Seward and Weed, the administration's new confidants, wanted the substance of the Wilmot Proviso. As a result, when New Mexico sought territorial status and Taylor's agents prodded Californians into a seemingly spontaneous movement for admission to statehood without slavery, Southerners found they had misjudged Taylor. Neither words nor threats could move him from Seward's Free-Soil influence.12 8 Holman Hamilton, Zachary Taylor, Soldier in the White House (Indianapolis: Bobbs Merrill Co., 1951), p. 94. 8 Ibid., p. 95. 10 Rayback, Millard Fillmore, p. 185. 11 Ibid., pp. 186-87; Hamilton, Zachary Taylor, p. 169. 13 Frederic Bancroft, The Life of William H. Seward (Gloucester, Mass., 1967), pp. 21516; Hamilton, Zachary Taylor, pp. 142-43, 298-99.

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At the same time, from Deseret came two petitions to Congress, one asking for statehood and the other for territorial status. To support the petitions in Washington Mormon officials sent John M. Bernhisel, a Whig, and Almon W. Babbitt, a Democrat, and enlisted the aid of nonMormon Thomas L. Kane, a Democrat, who had many important political acquaintances.13 Amid the rising national controversy surrounding the status of slavery in the Mexican Cession, could the Mormons, so often driven from place to place in the States, gain legislative and executive support for statehood in far away Deseret or, less desirable from the Mormon standpoint but more politically probable, territorial status? Over the issue of slavery in the western territories the career of Millard Fillmore and the interests of the Mormons in Deseret began to converge. At first Fillmore could only sit on the sideline; he dared not declare open war. Locked out of the administration's councils, his party loyalty was nevertheless too deeply ingrained for him to pursue an independent course. Seward had effectively immobilized Fillmore within the administration, but as presiding officer of the Senate he was in a position to gauge the truth or falsity of the debate swirling about the Senate. As tensions heightened over several sectional issues, Henry Clay, one of Fillmore's old adversaries, began his last great legislative effort, the Compromise of 1850. On January 29, 1850, hoping to promote political peace, Clay introduced his Omnibus bill providing statehood for California without slavery and territorial status for Utah and New Mexico without reference to slavery. Other sectional issues were tied to the Compromise. The Texas boundary dispute with New Mexico would be settled by giving the disputed territory to New Mexico and granting Texas money from the federal treasury to pay her debts. The slave trade would be ended in the District of Columbia, and the South would be given a stringent new fugitive slave law.14 Sentiments regarding Clay's Omnibus bill fell into three broad categories: Southern extremists opposed the principle of the Wilmot Proviso and were willing to go to the limit â&#x20AC;&#x201D; secession; Northern extremists were willing to push them to that limit; and Nationals sought an end to the agitation through compromise. Henry Clay and Stephen A. Douglas, the Democratic junior senator from Illinois whose skillful 13 Richard D. Poll, et al., Utah's History (Provo, U t . : Brigham Young University Press, 1978), p p . 156-57. There were 35 Democrats in the Senate, 24 Whigs, 1 Free-Soiler. In the House there were 109 Democrats, 101 Whigs, and 11 members of minority parties. Kane's connections were important. 14 Holman Hamilton, Prologue to Conflict: ton: University of Kentucky Press, 1964), p . 54.

The Crisis and Compromise

of 1850 (Lexing-

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Zachary Taylor, left, and William H. Seward, right, opposed most of the provisions of the Clay Compromise. The death of President Taylor in July 1850 placed Millard Fillmore in the White House and saw many Compromise measures quickly enacted. Courtesy National Archives.

negotiations in cloakrooms and manipulative legislative procedures left their marks on the Compromise, were the leaders of the Nationals.10 Taylor, Seward, and the Northern extremists agreed with only one point in the Clay Compromise, admission of California as a free state. Vice-president Fillmore professed loyality to the president, but when forced to choose on this sectional issue between the positions of his old adversaries, Clay and Seward, he moved toward Clay. Fillmore had his political allies praise Sen. Daniel Webster's March 7 speech in which he unexpectedly supported the Compromise and then wrote to a friend saying that the speech was "truly statesman-like." 16 President Taylor remained adamant. If any compromise measure reached his desk, he threatened to veto it. His position presented a special obstacle to Mormon desires. Babbitt wrote that Taylor had said "before twenty members of Congress that he would veto any bill passed, state or territorial, for the Mormons â&#x20AC;&#x201D; that they were a pack of outlaws, and had been driven from two states and were not fit for self-government." He also referred to the "absurdity" of the Mormons' asking for a state or territorial government. 1 ' 15 G. M. Copers, Stephen A. Douglas: Defender of the Union (Boston: Little, Brown, and Co., 1959), pp. 53-64. " Rayback, Millard Fillmore, p. 320. "Babbitt to Brigham Young, July 7, 1850, in Journal History of the Church, Archives Division, Historical Department, Church of Jesus Christ of Latter-day Saints, Salt Lake City.

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Bernhisel, meanwhile, had held interviews with a former New York governor, John Young, a moderate Whig of the Fillmore faction, who supplied Bernhisel with a letter of introduction. In consequence, he was able to meet with Vice-president Fillmore in early March and found him friendly and cooperative.18 By mid-June the national spotlight was beginning to shine on the publicly neutral vice-president as it became more and more likely that Fillmore might be called upon to cast a tie-breaking vote in the Senate. To avoid ruffling Taylor's feathers more than necessary, Fillmore informed the president that should he have to cast the decisive vote he would support the Compromise in the interest of the nation. Before that eventuality, a dramatic change took place. On Thursday July 4, 1850, Taylor came down with a cold. Over the weekend he grew weaker, and by Monday his condition was grave. At noon Tuesday, July 9, Fillmore was informed that he might become president, and late that evening Taylor died.19 Taylor's death prompted Bernhisel to write: T h e late illustrious chief magistrate entertained some strong prejudices and used m u c h harsh language against our community. Poor m a n ! H e has gone to give an account of his deeds done in the body, a n d has, I doubt not, ere this, learned that Mormonism, so called, is as true and enduring as the throne of the most High. Peace to his name. 2 0

Brigham Young added his condemnation: I love the government and the Constitution of the United States, but I d o not love the d a m n e d rascals w h o administer the government. I know Zachary Taylor, he is dead and d a m n e d , and I cannot help it. 21

In contrast to Taylor's obstructionism the Mormon emissaries found the new president far more friendly. Bernhisel reported that Millard Fillmore appeared to be a most courteous, agreeable, and accomplished gentleman who seemed favorably disposed toward the Mormons because of his belief that they had been shamefully abused and persecuted.22 Nevertheless, in the first week after Taylor's death few knew on which side of the Compromise Fillmore would direct the force of his administration. His desire, it was soon learned, was the substance of the "Bernhisel w Rayback, 20 Bernhisel 2t Young to 22 Bernhisel

to Brigham Young, March 21, 1850, Journal History. Millard Fillmore, p. 237; Hamilton, Zachary Taylor, pp. 388-92. to Brigham Young, August 9, 1850, Journal History. Perry Brocchus, September 9, 1851, Journal History. to Brigham Young, August 9, 1850.

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Henry Clay, left, a former adversary of Millard Fillmore, won his support for the Compromise of 1850. Daniel Webster, right, a Compromise supporter, became Fillmore's secretary of state. Courtesy National Archives.

Compromise. In the face of inevitable friction, Taylor's official family resigned but agreed to stay on one week while Fillmore reorganized the administration. In that limited time the new president sought out men who would reflect his wish for sectional peace. In the first public act suggestive of his hope for the Omnibus bill, Fillmore chose Compromisesupporter Daniel Webster as his secretary of state.23 With Taylor's threat of a veto gone there was no need for the Omnibus bill as such. By breaking the bill into its component parts, the sectionalists could vote for those measures of which they approved, and if enough Nationals joined them each measure would become law with a cooperative president's signature. This was sound political wisdom. Stephen A. Douglas, who had earlier advocated such a plan, now promised to assume leadership to effect the essence of Clay's Omnibus bill through separate measures. Fillmore affixed his signature to the bills as rapidly as they came to him, with the exception of the Fugitive Slave Act on which he hesitated. 21 In ten weeks Fillmore's administration had, 23

Rayback, Millard Fillmore, p. 242. Ibid., p. 256. Fillmore regretted the necessity for the Fugitive Slave Act; but the Constitution required the giving up of fugitive slaves, and it was not for him to decide whether this was a wise provision. The Mormons' proposed name of Deseret was changed to Utah because some congressmen claimed it sounded too much like "desert" and would carry a negative connotation. 24

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temporarily at least, settled several problems that had plagued the nation since the Mexican War. In the process, Utah gained territorial status. Fillmore's course was prompted in part by intraparty political strife. He was willing — even anxious — to thwart the ambitions of the WeedSeward faction which he considered radical. He abhorred their extremism, and by 1850 he had made his peace with Clay — age had overcome the Kentuckian's ambition. Additionally, Fillmore was by nature a conciliator committed to maintaining peace in a troubled land. He believed he acted to preserve the Union and that time would heal all wounds, eventually settling even the slavery issue. In the meantime, military force was to be avoided insofar as possible. His legislative and executive record is remarkably clear of bluff, bombast, or aggression. He respected commercial leaders and sought to advance their cause wherever he could. In the spring of 1850 they began to advocate compromise to quiet threats of secession and/or economic boycott from the South. To put it simply, Fillmore accepted territorial status for the Mormons in Utah in the larger national interest and because it seemed a more realistic political alternative than ignoring their existence or granting them statehood.25 There was, with Utah's new status, an additional opportunity for Fillmore to demonstrate friendship. Taylor had clearly stated his opposition to the nomination of members of the LDS First Presidency or the Quorum of Twelve Apostles to governmental positions. This had disappointed Bernhisel who had come to Washington with a proposed slate of territorial officers including: Brigham Young, governor; Willard Richards, secretary; Zerubabbel Snow, chief justice; Heber C. Kimball and Newell K. Whitney, associate justices; Seth M. Blair, attorney; and Joseph L. Heywood, marshal. Several of these were in the Mormon ecclesiastical hierarchy. It was soon learned that the Fillmore administration was much more favorably disposed toward the appointment of Mormons to executive positions for Utah without concern for their church offices if the federal government could have the three judgeships. Daniel Webster and Secretary of the Treasury Thomas Corwin, the two most influential members of Fillmore's cabinet, also endorsed the concept of appointing Mormons. Fillmore told Bernhisel "that officers, by all means, should be appointed from among your members."26 25 Eleven of thirteen northern Whigs in the Senate voted against territorial status for U t a h . T w o others were absent and not voting. See Kenneth E. Shewmaker, "Daniel Webster and the Politics of Foreign Policy, 1 8 5 0 1852," Journal of American History 63 (1976) : 3 0 6 ; Rayback, Millard Fillmore, p. 298. ^Bernhisel to Brigham Young, March 27 and September 16, 1850, LDS Archives; September 7, 1850, Journal History; August 9, 1850, LDS Archives.

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Knowing that an all-Mormon slate was out of the question, Bernhisel now amended his list to Brigham Young, governor; Zerubabbel Snow, who had been secretly baptized into Mormonism the previous winter in Ohio, chief justice; Joseph L. Heywood, marshal; Seth M. Blair, attorney; and Daniel F. Miller, a friendly non-Mormon from Iowa, associate justice. Miller seemed a good choice since he was a Whig and Iowa was a politically pivotal state where Mormons led by Orson Hyde and his Frontier Guardian had strongly supported the Whig ticket.27 The negotiations continued into September 1850. When Fillmore asked what he might expect from Young as territorial governor, Bernhisel assured the Whig president that Young, a Democrat, would support his administration. In a letter marked "strictly private and confidential," Bernhisel reported that a quid pro quo might be necessary to the appointment of Mormons. "It had been intimated to me in high quarters, that if the people of Utah wish any favor of this Administration, they should elect a Whig delegate to Congress. I have no aspirations for that office."28 The First Presidency replied: We feel inclined, as soon as an organization can be gone into u n d e r the act to elect a delegate. W e shall r e c o m m e n d some good W h i g for t h a t office, a n d use w h a t little influence we are possessed of to d o the fair thing. . . . W e think some of n o m i n a t i n g a W h i g for delegate w h o is n o w in W a s h i n g t o n City, feeling assured t h a t although he m a y h a v e n o aspirations to t h a t office, yet t h a t we can rely u p on his eminent capability a n d acceptance. 2 9

The First Presidency's "little influence" proved sufficient, as they nominated Bernhisel and he received all 1,259 votes.30 President Fillmore kept his part of the bargain, and Bernhisel was soon able to convey the good news to Brigham Young: "I heartily congratulate you on your appointment to the office of Governor of Utah Territory." The other appointments went to Broughton B. Harris, a Vermont Whig, secretary; Lemuel L. Brandebury, a Pennsylvania Whig, chief justice; Perry E. Brocchus, an Alabama Democrat, associate justice; Zerubabbel Snow, associate justice; Seth M. Blair, attorney; Joseph L. Heywood, marshal. Four of the seven territorial officials were Mor'' Bernhisel to Brigham Young, September 12, 1850, Journal History; J. Keith Melville, Highlights in Mormon Political History (Provo, Ut.: Brigham Young University Press, 1967), Charles E. Merrill Monograph Series, no. 2, p. 33. 28 Bernhisel to Brigham Young, September 16, 1850, LDS Archives. 29 First Presidency to Bernhisel, November 20, 1850, LDS Archives. 30 Gwynn W. Barrett, "John M. Bernhisel, Mormon Elder in Congress" (Ph.D. diss., Brigham Young University, 1968), p. 89.

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Four of the seven territorial officials appointed by Millard Fillmore for Utah were Mormon, including Joseph L. Heywood, left, marshal, and Seth M. Blair, right, attorney. USHS collections.

mon. Bernhisel assured Brigham Young that "the appointing power has been far more liberal to us, than it has been to any other territory, for all the officers in the territories heretofore established were filled by citizens selected from the states."31 Fillmore's friendly gesture to the Mormons was prompted by several considerations. The president believed implicitly in local rights and in not embarrassing a locality. Additionally, Bernhisel had presented a persuasive case for popular sovereignty. In 1850 Utah was enjoying favorable publicity from letters to the eastern press by goldseekers traveling through the territory on their way to California. It might also be conjectured that Utah was considered insignificant: it was far away, its culture seemed alien, and there were probably no lines of patronage-seekers forming. Since Fillmore was not then contemplating an attempt to gain the presidential nomination in 1852, he did not feel the need for patronage appointments to strengthen his party standing. The three non31 Bernhisel to Brigham Young, October 2, 1850, L D S Archives; Young to Brocchus, September 25,1858, Journal History; B. H . Roberts, A Comprehensive History of the Church of Jesus Christ of Latter-day Saints, Century 1, 6 vols. (Salt Lake City: Deseret News Press, 1930), 6 : 5 0 1 ; Bernhisel to Brigham Young, November 9, 1850, L D S Archives.

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Mormon appointments went to men suggested by others. Yet another explanation for the administration's attitude toward the Mormons was offered by the highly partisan Orson Hyde. He believed, "it is God working through the Whigs. . . ."32 Joy over the territorial appointments was short-lived. Despite Bemhisel's assurance that the president would appoint no man unfriendly to "our people," 33 a noisy uproar soon came from the three non-Mormon officials. The growing dissatisfaction of the non-Mormon appointees was underscored on September 20, 1851, when Judge Brocchus began the charges and countercharges with a letter detailing alleged authoritarian rule and misgovernment in Utah under Brigham Young. The crisis escalated on September 28 when Brocchus, Judge Brandebury, and Secretary Harris left Utah, taking with them the official seal, the public funds, and the judicial authority. 34 Bernhisel was summoned by Secretary of State Webster, shown the charges, and given an opportunity to reply. He essentially denied the charges. Then, on December 19 the fugitive officers filed their official report alleging Mormon misrule. Bernhisel responded to that move with a request for an investigation, whereupon Congress asked the president for information on conditions in Utah Territory. 35 Bernhisel feared that the charges were detrimental to the Mormon cause and that Congress and the press would be persuaded. He frankly reported his misgivings: The excitement here in relation to the Utah difficulties is intense, and it is with deep regret that I inform you that it is considered a settled matter that Governor Young is to be removed, and the appropriation immediately to be paid over to his successor. General Doniphan, of Missouri, is spoken of as the successor, and a military force is to be stationed in our Territory to enforce the law. 36

Brigham Young, realizing the difficulty Bernhisel faced in defending Utah, set the stage for a conciliatory gesture. He wrote the president complaining of the distance from the southern Utah communities to the capital in Salt Lake City. A few days later Bernhisel was asked to set 32 Rayback, Millard Fillmore, p . 187; N o r m a n F . Furniss, The Mormon Conflict, 18501859 ( N e w H a v e n : Yale University Press, 1 9 6 0 ) , p . 1 1 ; Shewmaker, "Daniel Webster," p. 11 (Brocchu was a Webster c h o i c e ) ; Hyde to First Presidency, December 29, 1850, Journal History. 33 Bernhisel to Brigham Young, October 2, 1850, Journal History. 34 For a chronology a n d the specifics of the controversy see U.S., Congress, House, House Executive Document No. 25, 32d Cong., 1st sess., 1852, serial 638, a n d Furniss, Mormon Conflict, p p . 7â&#x20AC;&#x201D;35. 35 A n d r e w Love Neff, History of Utah, 1847 to 1869 (Salt Lake City: Deseret News Press, 1 9 4 0 ) , p p . 171-76. 39 Bernhisel to Willard Richards, D e c e m b e r 24, 1851, L D S Archives.

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forth to the president Utah's request that Chalk Creek be renamed Fillmore and established as the new seat of territorial government. Seeking to buoy Bemhisel's spirit, confident the charges could be refuted, hopeful his gesture toward the president would be rewarded, or perhaps all three, Young wrote: ". . . we still trust and believe that President Fillmore and those associated with him have good sense enough to discern the trick that is trying to be played upon them by the Devil and his imps." Jedediah M. Grant who was in the East gave an equally optimistic report: "I think and feel that all things will work together for our good." He also informed Governor Young: "You are not yet removed from office. Though it has been rumored that you were and that you would be, etc" 3 7 Fillmore was in a tight spot: Democrats were critical of the alleged mess created by their Whig opponents, and the Seward faction of the Whig party was even more critical of the president's appointments. However, Mormon optimism proved justified, for Fillmore gave considerable weight to Bemhisel's continuing advice. He assured Bernhisel that he wanted to do justice to the Mormons and his duty to the government. The Utah delegate felt that the president, a believer in the right to worship according to one's conscience, did not partake of the general prejudice against the Mormons. Fillmore did express concern, however, at the charge that the Mormons had set up a government for themselves. Of course, Bernhisel assured him that there was no truth to the assertion.38 Mormon satisfaction with Fillmore grew during the crisis: President Fillmore's declining to act on the absconding officer's question till he heard both sides is but another of the many proofs that we have had that he is a man worthy of the dignified station he occupies. . . . H e will judge righteous judgment. 39

Brigham Young was "pleased that the President thinks before he acts in this case." Fillmore's manner was so successful as to reconcile the governor to his possible removal: "If any man that is not one of us or resident in the Territory should be appointed Governor in my place, I should soon General Doniphan would be that man . . . ," Young wrote.40 In May 1852 Bernhisel was again summoned to the White House, not to hear of Young's removal but to suggest whom the president should nominate to replace the three fugitive officials. Bernhisel reported 87 Young to Fillmore, September 29, 1851; Young to Bernhisel, October 31, 1851, LDS Archives; Young to Bernhisel, February 29, 1852, Journal History; Grant to Young, March 10, 1852, Journal History. 38 Bernhisel to Brigham Young, April 9, 1852, Journal History. 39 Willard Richards to Bernhisel, April 30, 1852, Journal History. 40 Young to Bernhisel, May 27, 1852, Journal History.

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Utah Historical Quarterly [his] conviction that the President honestly and sincerely desires to do w h a t is right toward us. . . . H e is a noble, high minded, accomplished gentleman, and the more intimately I become acquainted with him, the more he excites my respect and admiration. 4 1

The nominees submitted included Orson Hyde as the replacement for Brocchus. However, the Senate refused to ratify the appointment, not because Hyde was a Mormon but because he lacked training in the law. His nomination was a source of gratification to the Mormons, for it indicated the positive attitude of the administration, and it angered the three fugitive officials, symbolizing as it did Fillmore's disparagement of their reports. Mormons were sure that "President Fillmore . . . acted nobly."42 Ultimately, Leonides Shaver of Virginia and Lararus H. Reed of New York were confirmed as judicial replacements with Reed as the chief justice. Lest the Mormons become complacent Bernhisel warned, "The President desired me to say that the good people of Utah must not get into difficulty with these officers."43 Utahns heeded this advice and got along with the new appointees. In 1855 on the occasion of Chief Justice Reed's death the Deseret News editorialized: A m o n g the many kind public acts of Millard Fillmore, t h e late [sic] President of the United States, towards the inhabitants of U t a h , few a r e cherished by the Saints with w a r m e r gratitude than is felt for his appointment of the now lamented and illustrious deceased. . . , 44

Fillmore continued his friendly support of the Mormons in the latest controversy partly for political reasons. Reconsidering his future and believing his candidacy necessary to the fulfillment of the Compromise of 1850, Fillmore was back in the race.43 He felt that much of the furor over Utah was a partisan attempt to discredit his administration, a challenge he met head on. A second, related reason was that the charges leveled against Brigham Young and the Mormons were flawed, contradictory, and in some instances easily refuted. For example, the complaint that Governor Young had illegally carried out a fraudulent census in 1850 was readily countered by pointing to Young's official appointment to enumerate the inhabitants of Deseret and to the statement of the superintendent of the seventh census that he was "pleased with the manner 41

Bernhisel to Brigham Young, May 8, 1852, Journal History. Bernhisel to Willard Richards, June 15, 1852; Bernhisel to Brigham Young, August 13 1852; Jedediah M. Grant to Brigham Young, May 13, 1852; all Journal History. 43 Bernhisel to Brigham Young, May 9, 1852, Journal History. 44 Deseret News, July 4, 1855. 45 Rayback, Millard Fillmore, p. 356. 42

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and accuracy" of the Utah census.46 This, of course, undermined the credibility of the entire testimony of the fugitive officials. Millard Fillmore could easily relate to this sort of half-truth, innuendo, and character assassination, for he was undergoing the same experience himself. A third reason for Fillmore's response to charges against the Mormons was the assistance of Thomas L. Kane who cleverly defended Brigham Young against what he termed "anonymous charges" of excessive taxation. He struck a responsive chord with the president, a temperance advocate, when he admitted that Young did place a high tax on spiritous liquors.47 Mistakes by the plaintiffs constituted a fourth motivation. Judge Brocchus inadvertently helped the Mormon cause by reporting that military force would be necessary to successfully rule Utah without Brigham Young's cooperation.48 For Fillmore, the conciliator, military force should be used only as a last resort. He believed there were enough patriots in Utah to execute the law.49 Brocchus's second, unwitting mistake was taking his anti-Mormon message to the Masons.50 Given Fillmore's Antimasonic political beginnings, this strategy backfired. Finally, Fillmore's own experience as comptroller of New York State, coupled with Bemhisel's effective lobbying, helped convince the president that Harris's behavior as territorial secretary was petty, nit-picking obstructionism. Bernhisel, on the other hand, was cordial, cooperative, and supportive. This came as a welcome relief from the acrimony and controversy surrounding the embattled president in 1852. Fillmore and Bernhisel had been drawn into a closer alliance by circumstances. Criticism of the manner of Bemhisel's election as territorial delegate to Congress ran simultaneously with the controversy of the three absent officials. This attack on Bernhisel, led by George Briggs, a New York Whig congressman of the Seward faction, was seen by Fillmore as another attempt to embarrass his administration. In addition to the more tangible motivations noted above, Fillmore's Unitarian faith may also have helped to make him more tolerant of the Mormons. Unitarian liberalism was conducive to an easier acceptance of religious peculiarities, even those of the Mormons. Fillmore's religious background kept him in step with democratic America's march toward complete separation of church and state. He was especially opposed to religious test oaths for officials, and it seemed as reprehensible to remove 40

Bernhisel to Brigham Young, July 5, 1850, J o u r n a l History; Journal History, M a r c h 25,

1852. 4T

K a n e to Young, July 11, 1851, Journal History. House Executive Document No. 25, p . 9. 49 Rayback, Millard Fillmore, p . 406. 50 Address of Perry E. Brocchus to Masons at Santa Fe, N . M . , December 27, 1854.

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a person from office because he was a Mormon as it was to administer religious oaths prior to obtaining an office. However, Unitarian liberalism did not allow Fillmore to grant the same objectivity to Catholics. In fact, he found the anti-Catholic and antiforeign Know-Nothing party a convenient political vehicle after the death of the Whig party, and he became the Know-Nothing candidate for president in 1856. In 1852 the Mormons had played upon Fillmore's anti-Catholicism by attributing the charges raised against them to a conspiracy of Catholic priests and Catholic-controlled newspapers.51 Regardless of Fillmore's underlying motivation for granting favors, contemporary Mormons viewed him as a friend. It was with genuine regret that Bernhisel informed Brigham Young that Millard Fillmore had lost his bid for nomination as the Whig presidential candidate in 1852, for Fillmore was considered high-minded, honorable, and a man of liberal views who desired to do the Mormons justice. As Fillmore's administration drew to a close, Brigham Young asked Bernhisel to "remember me in kindness to the President, I feel that he is our friend." Mormons generally agreed with Daniel H. Wells's Independence Day toast of 1853: "May his retirement be as happy and prosperous as his Administration was successful and glorious and the American people learn to know and appreciate their good men before they lose them."52 In contrast to history's harsh judgment of F'illmore, Utahns, upon his death in March 1874, rendered their positive assessment of his administration. With the added perspective of time and comparison to subsequent presidents the Deseret News felt that Fillmore was "more thoroughly imbued with the fundamental principles of American government than. . . any President since his time."53 Indeed, from the perspective of territorial Utah, history has been too unkind to Millard Fillmore. 81 Rayback, Millard Fillmore, p p . 45, 6 6 - 6 7 ; Michael F. Holt, " T h e Politics of I m patience: T h e Origins of Know Nothingism, Journal of American History 60 (1973) : 322; Willard Richards to Bernhisel, April 29, 1852, Journal History. 52 Bernhisel to Young, July 12, 1852; Young to Bernhisel, August 28, 1852, both Journal History; Deseret News, July 5, 1853. Deseret News, M a r c h 9, 1874.

The Fillmore State House, a National Register site, was briefly the seat of territorial government. The city of Fillmore and Millard County honor the president Mormons saw as a friend. USHS collections.

Justice for All or for the "Ele< he Utah County Probate Co 185572

Restored interior of the Beaver County Courthouse, a National Register site that served the'territory's Second Judicial District until 1896. USHS collections, courtesy Utah Heritage Foundation.

T h e Government of the United States, founded upon a written constitution finds within its jurisdiction another government claiming to come from Godâ&#x20AC;&#x201D;imperium in imperio . . . . James B. M c K e a n , Chief Justice of U t a h Salt Lake Tribune, October 9, 1871

the relationship between the United States government and the Mormon church during Utah's territorial era. The zone of contention centered upon such issues as the Mormon practice of plural marriage, the church theocratic po-

I M U T U A L SUSPICION AND REPROBATION CHARACTERIZED

Ms. Gee is a doctoral candidate in interdisciplinary studies at the University of West Virginia. This project is part of a larger study of the U t a h territorial court system. She acknowledges the assistance of Professors James B. Allen, Thomas G. Alexander, and Eugene E. Campbell of Brigham Young University.

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litical and economic order, and conflicting federal-territorial jurisdictional limits. Contributing to the discordant climate was an 1852 law enacted by the Mormon-dominated territorial legislature. This act conferred upon the county probate courts authority far in excess of their traditional powers to probate wills, administer estates, and provide for the guardianship of minors and the mentally ill.1 Interpreting broadly the provision of the 1850 territorial Organic Act that established the judiciary and stipulated only that the authority of the probate court "shall be limited by law," 2 the 1852 legislative assembly liberally granted the probate courts original jurisdiction in civil and criminal disputes.3 Except for the allowance that appeals of probate court decisions may be taken to district court,4 and a few other minor qualifications, the territorial legislators by their action empowered inferior tribunals with authority effectively concurrent with that of the superior district courts. An added consequence was that probate judges, who were elected by the territorial legislature and generally holders of leadership positions in the Mormon church, were granted powers in territorial affairs substantially equivalent to those vested in federally appointed district judges who were, with few exceptions, non-Mormon. 5 This action by the Mormon legislators was cited by federal officials 1 For a thorough discussion of the controversy surrounding the extraordinary powers granted the probate courts, see James B. Allen, "The Unusual Jurisdiction of the County Probate Courts in the Territory of Utah," Utah Historical Quarterly 36 (1968) : 133-42; Thomas G. Alexander, "The Utah Federal Courts and the Areas of Conflict, 1850-1896" (Master's thesis, Utah State University, 1961), pp. 18-34; and, Clair T. Kilts, "A History of the Federal and Territorial Court Conflicts in Utah, 1851-1874" (Master's thesis, Brigham Young University, 1959), pp. 55â&#x20AC;&#x201D;59. See also, Utah Territory, Acts, Resolutions, and Memorials Passed by . . . the Legislative Assembly . . . 1851 (Great Salt Lake City, 1852), "An Act in Relation to the Judiciary," Sec. 30, p. 43, approved February 4, 1852. 2 Utah Territory, Compiled Laws . . . (Salt Lake City, 1876), "An Act to Establish a Territorial Government for Utah," Sec. 9, p. 31, approved September 9, 1850. A copy of the Organic Act is contained in all editions of the Compiled Laws before 1896. 3 Utah was not unique in broadening the jurisdiction of its local courts. Four years following the Utah action, the Nevada territorial legislature conferred upon its probate courts appellate power over justices courts and granted them original civil jurisdiction in cases involving amounts up to $500. Additionally, the territories of Nebraska, Colorado, Montana, and Idaho awarded their probate courts limited extra powers. Nevertheless, the Utah courts with their unqualified criminal and civil authority were the most extreme examples of such jurisdictional assignments. Earl S. Pomeroy, The Territories and the United States, 1861-1890 (Philadelphia: University of Pennsylvania Press, 1947), pp. 59-60. 4 "An Act in Relation to the Judiciary," pp. 43-44. 5 For the period studied, three judges were appointed by the president and confirmed by the Senate to preside over the judicial system of Utah Territory. They served singly as district judges and collectively as a supreme court; as such they had original as well as appellate jurisdiction in the same cases. In 1888 the Utah Supreme Court was increased to four justices who then were disallowed authority to act as members of the supreme court in appeal proceedings from district court decisions they had personally rendered. These same judges had jurisdiction in cases arising under both territorial and federal law. Pomeroy, Territories, p. 5 1 ; and, U.S., Statutes at Large, vol. 25, p. 203 (1888). This writer found no evidence in contemporary literature or court documents that the Utah Territorial Legislature intended to confer upon the probate courts authority to adjudicate disputes in which the United States was a party.

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and other critics as a tactical maneuver on the part of the church to secure control of the territorial judicial system. By capitalizing on the natural sympathy and allegiance of its followers, the church, and especially Brigham Young, allegedly directed Mormon judges and jurors to manipulate judicial proceedings in a way that served the private interest of Mormons as well as the broader objectives of the church. 6 Particularly strong were allegations that non-Mormons received unfair treatment at the hands of Mormon judges and jurors. Probate courts supposedly convicted the innocent if they opposed the Mormon cause and turned loose the guilty if they were brethren in the faith. The purpose of this paper is to measure in part the validity of this charge of partisanship. Through an analysis of court documents, this article seeks an indication of whether or not the judges and juries of the Utah territorial probate courts administered impartial justice to both Mormons and non-Mormons w7ho appeared before them.

Data for this study were collected from records of the Utah County Probate Court.7 Court documents were culled primarily for variables that are statistically classifiable and that demonstrate relative degrees of consistency and fairness in the court's treatment of Mormon and non-Mormon litigants. All territorial civil and criminal actions considered by the court during four periods of its twenty-two-year tenure of civil and criminal jurisdiction were subjected to classification and analysis.8 Examined were the sum of all cases litigated during two-year periods: 1855-56, 1860-61, 1865-66, and 1870-71. The periods identified for study represent a random sample of all years that the court adjudicated civil and criminal disputes. Four periods were selected so that the data might reflect possible significant aberrations or trends in the court's behavior.9 0 Several scholars of western and Mormon history offer a similar explanation for the broadened powers of the probate courts. M a n y historians see the expansion of jurisdiction as an a t t e m p t by church leaders to extend their influence to local branches of government. Klaus J. Hansen in Quest for Empire: The Political Kingdom of God and the Council of Fifty in Mormon History (East Lansing: Michigan State University Press, 1970), examines the activities of the Council of Fifty, a secret organization established by the church's founder-prophet, Joseph Smith, to preside over God's political dominion which was destined to supplant all worldly governments. T h e council, he concludes, used the probate courts as its "extended arm . . . administrating the laws of the Kingdom of God on a local level" (p. 1 3 1 ) . 7 U t a h County Clerk's Office, Provo, U t a h , microfilm copies of records of civil and criminal proceedings before the U t a h County Probate Court for the years 1855-72. 8 Petitions for divorce are excluded from this study. 9 T h e usefulness of this sample is qualified by two factors: First, the number of cases filed a n d tried fluctuated widely from year to year, as the following table demonstrates. Therefore, conclusions drawn from these statistics reflect those years in which the court was most active.

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All litigants, jurors, and judges involved in the trial proceedings that took place during these years have been classified as Mormon and non-Mormon. Membership records of the Church of Jesus Christ of Latter-day Saints from wards and branches within Utah County served as the primary source for determining whether or not an individual was Mormon. 10 Following a brief review of the historical environment contributing to the controversy over the unusual authority enjoyed by the Utah territorial probate courts, this study attempts to address the issue of the court's fairness. To be considered first is the question of whether the number of Mormon judges and jurors was sufficiently great that Mormons acting en masse could have manipulated the outcome of judicial proceedings. Second, various procedural operations of the court are examined for possible proof that litigants anticipated and received partial treatment by Mormon judges and jurors. Finally, the judgments rendered are analyzed for potential evidence that the probate court's standard of justice was not equally applied to both members and nonmembers of the Mormon church. 11 This analysis lays no claim to conclusiveness. Such a study obviously is limited because objective measures cannot be applied to all aspects of the court's treatment of litigants. With few facts and other circumSecond, for certain classification of d a t a , sample sizes are too small to bear statistical significance. However, such information is included in this analysis where it underlines general patterns in the court's behavior. C I V I L C A S E S F I L E D AND T R I E D

N u m b e r of Actions

Distribution by Percentage

Civil Complaints Filed , Civil Gases T r i e d Criminal Indictments Filed Criminal Cases T r i e d

1855-56

1860-61

1865-66

1870-71

All Years

26% 30.5 7 4

44% 36 59 61

26% 28 30 35

4% 5.5 4 .

50 36 76 57

10 G h u r c h of Jesus Christ of Latter-day Saints, Historian's Office, Record of Membership for wards a n d branches in U t a h C o u n t y for years 1850-90 (microfilm copy in Lee Library, Brigham Young University, P r o v o ) . O t h e r L D S records searched for d o c u m e n t a t i o n of church membership i n c l u d e d : C h u r c h of Jesus Christ of Latter-day Saints, Genealogical D e p a r t m e n t , Computer File Index (October 1976) (microfiche copy in Lee Library) ; F r a n k Esshom, Pioneers and Prominent Men of Utah (Salt Lake City, 1913) ; and, A n d r e w Jenson, Latter-day Saints Biographical Encyclopedia, 4 vols. (Salt Lake City, 1 9 0 1 - 3 6 ) . C o u r t actions involving individuals w h o could not be classified as M o r m o n or n o n - M o r m o n are excluded from this study. 11 For a statistical analysis of decisions of the Salt Lake County Probate C o u r t for the years 1 8 5 2 - 5 5 , see J a y E. Powell, "Fairness in the Salt Lake Probate C o u r t , " Utah Historical Quarterly 38 (1970) : 2 5 6 - 6 2 ; a n d " A n Analysis of the N a t u r e of the Salt Lake C o u n t y Probate Court's Role in Aggravating A n t i - M o r m o n Sentiment, 1 8 5 2 - 1 8 5 5 " ( H o n o r s essay, University of U t a h , 1968). '

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stances concerning the cases extant, it is impossible to determine if its pronouncements were truly fair and warranted by the evidence. Additionally, if the court was regarded by some of its contemporaries as biased in favor of members of the Mormon church, it is conceivable that certain justified complaints against Mormons never were preferred in probate court. Perhaps some individuals were reluctant to press charges against Mormons because they predicted that Mormondominated courts would rule in favor of the accused. Obviously this study cannot measure how the court would have acted in cases it never heard. II For two decades the extensive jurisdiction of the Utah County Probate Court served as a source of friction between feuding camps of Mormons and federal officials. Mormons sided with the action of the legislators, claiming that without the conferral of these powers upon the probate courts the local citizenry would be denied the full protection of the law. Their contention, to some extent, stemmed from the fact that a few months prior to the passage of the controversial act, two of the three federally appointed judges fled the territory, the consequence of a bitter collision with the Saints. As a result, the administration of justice in Utah unquestionably was slowed until the vacancies were filled in 1853. At least in part, the continuance of the unorthodox assignment given the probate courts must be attributed to the inadequate and problemridden territorial judicial system. The three judges assigned to each of the United States territories were far too few to handle the judicial business of their expansive districts.12 The legislators of Washington Territory were so frustrated by the deficiencies that in 1862 they complained: . . . the existing state of the Districts and courts of this Territory consequent on an allowance of three Judges only, and the immense territory forming each district, for the holding of Court, works a grievance to the people tantamount to a denial of justice. 1 *

Defenders of the probate courts argued that deficiencies in the territorial court system, similar to those enumerated by the Washington 12 The shortcomings of the territorial judicial system, including the inadequate number of judges, are discussed in Pomeroy, Territories, pp. 53-61; and John D. W. Guice, The Rocky Mountain Bench: The Territorial Supreme Courts of Colorado, Montana and Wyoming, 18611890 (New Haven: Yale University Press, 1972). 13 Washington . . . Session Laws (9th sess., 1861-62), p. 162, cited in Pomeroy, Territories, p. 53.

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territorial officials, hindered the administration of justice in Utah T e r ritory. On June 2, 1874, Delegate George Q. Cannon, addressing the House of Representatives, contended that the inaccessibility of the district courts and their irregular convening compelled the Utah legislative assembly to establish alternate tribunals. He maintained that the two outlying district courts were in session less than two days a year and that the district court in Salt Lake City was "in session but a small portion of the time." He further claimed that some judges appointed "to the first and second districts never saw the places appointed for holding their courts." Without the extensive jurisdiction given the probate courts, citizens might resort to lynch law to punish crimes. However, even if the district courts held regular sessions, the distances in territorial Utah posed problems. He cited as an example the two thousand inhabitants of St. George who had to travel 120 miles to Beaverâ&#x20AC;&#x201D;a three-day journeyâ&#x20AC;&#x201D; to transact business before the Second District Court. Cannon compared the inconvenience to a Boston citizen's being forced to transact business in Chicago. Other towns in the Territory are similarly situated to that of Saint George, and, without local courts of some kind, they are wholly without protection by judicial authority in property or person. Under these circumstances, can it be said that the Legislature of Utah acted unwisely in conferring jurisdition on the probate courts? Would they not have fallen short of their duty had they neglected to throw around their infant settlements, so widely separated, such protection as the probate courts have afforded.14

Critics of the probate court's extraordinary jurisdiction countered that the territorial legislature had gone beyond the sense of the Organic Act in so broadly defining the authority of the local courts. They accused the Utah legislators of usurping rightful powers of the district courts in order to shackle federal authority and dilute the influence of federally appointed judges, many of whom were regarded as unsympathetic or even hostile to Mormons and their unorthodox institutions. Several judges assigned to Utah opposed the jurisdiction of the probate courts and aggressively sought to void their powers. Frequently, federally appointed judges ruled that the inferior courts had no province to adjudicate criminal and civil disputes. One such jurist was Cyrus M. Hawley. Presiding from the Second District Court in Beaver, Judge Hawley overturned a probate court decision on the grounds that the lesser tribunal had no jurisdiction in criminal matters. As a result of this ruling, 11 U.S., Congress, Senate, Congressional Record, 43d Cong., 1st sess., 1873-74, 2, pt. 5:4470-71.

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Isaac L. Penson, who had been sentenced to two and a half years in the penitentiary for intent to murder Isaac Riddle, was released from custody.15 Other judges took issue with the quality of justice delivered by probate judges and juries. Associate Justice W. W. Drummond accused the probate courts of imprisoning several individuals whose only crime was that they were anti-Mormon: I charge the Mormons, and Governor Young in particular with imprisoning five or six young men . . . who are now in the penitentiary of U t a h , without those men having violated any criminal law in America. But they were anti-Mormonâ&#x20AC;&#x201D;poor uneducated young men . . . indicted by a probate court, and most brutally and inhumanely dealt with, in addition to being summarily incarcerated in the saintly prison of the Territory of Utah. 1 6

The controversy over the legal dominion of these local courts finally swelled to such intensity that an act of Congress and a ruling by the U.S. Supreme Court were required to resolve the dispute. Enacted in 1874, the Poland bill annulled the extraordinary civil and criminal jurisdiction enjoyed by the Utah territorial probate courts for nearly a quarter of a century.17 Closely following the passage of the Poland bill, the Supreme Court in the case of Ferris v. Higley upheld this legislation by ruling: . . . We are of the opinion that the one [act of the territorial legislature] which we have been considering is inconsistent with the general scope and spirit of the act [territorial organic act] in defining the courts of the Territory, and the distribution of judicial power amongst t h e m . . . , 18

By the high court's pronouncement that the territorial law empowering the probate courts went beyond the intent of Congress, the long debate over an unconventional facet of Utah's judicial system was ended.

p. 267.

Orson F. Whitney, Popular History of Utah (Salt Lake City; Deseret News Press, 1916),

18 House Executive Documents, No. 71, 35th Congress, 1st sess., X, Serial 956, pp. 212-13. Curtis E. Bolton, deputy clerk of the Utah Supreme Court and a Mormon, wrote to Attorney General Black refuting Justice Drummond's charges. Bolton claimed that the individuals Drummond named were guilty of stealing provisions and groceries. Of the number indicted, four were convicted and sentenced; three of the convicted pled guilty. Because their destitute condition was seen as a motivating factor in the theft, according to Bolton, they were given the shortest sentences the statute allowed for the crime. Governor Young supposedly pardoned them the following spring so they could join a company traveling to California. Bolton recalls: "It was a matter well understood here at the time, that these men were incarcerated more particularly to keep them from committing further crime during the winter." Copy of letter in Orson Whitney History of Utah (Salt Lake City, 1892), 1:583-84. "U.S., Statutes .at Large, vol. 18, pp. 253-56 (1874). Although the Poland bill revoked the probate court's authority in civil and criminal matters, it allowed decrees executed prior to passage of the act to stand. 18 Ferris v. Higley, 87 U.S. 375 (1874).

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III The first effort of this analysis focuses on the allegation that the Mormon church commandeered the territorial judicial system by naming judges, packing juries, and staffing other important court offices with Mormons. Critics of the probate courts contended that probate judges were chosen from the leadership echelon of the church. Such judges were regarded by many as loyal first to the dogma and policies of the church and only second to the administration of impartial justice. Because of their ecclesiastical authority and prestige, Mormon judges were said to hold strong sway over Mormon jurors and court functionaries.19 A review of listings of church leaders sustains, in part, this allegation. Of the seven judges who presided over the Utah County Probate Court during the years in which the court exercised extensive civil and criminal authority, six held high church office throughout their judicial tenure.20 An example of such an official was Aaron Johnson who during 1861 served both as a probate judge and Mormon bishop. It is likely that Silas Smith who presided over the probate court in Utah County from 1859 to 1861 was also a bishop.21 Other church officials who served simultaneously as judges include Isaac Higbee, probate judge from 1852 to 1856, and George W. Bean, who sat on the bench approximately seven years, from 1866 to 1868 and from 1870 to 1875. Both of these men were first counselors in the Utah Stake presidency while serving as probate judges. 19 A l t h o u g h beyond the scope of this study, it should be noted t h a t t h e p r o b a t e j u d g e also came u n d e r fire for abetting the practice of plural marriage. Allegedly, the j u d g e fostered plural m a r r i a g e by routinely g r a n t i n g the m a n y petitions for naturalization filed by alien polygamists. T h e legal records of U t a h C o u n t y show t h a t the probate j u d g e did indeed receive m a n y requests for citizenship. However, due to the difficulty of identifying immigrants w h o were polygamist members of the M o r m o n church, this study does not u n d e r t a k e to determine the role of the p r o b a t e court in encouraging their immigration. T h e p r o b a t e j u d g e was also accused of indirectly blocking enforcement of the Morrill Act of 1862 which m a d e bigamy a federal crime. ( U . S . , Statutes at Large, vol. 12, p. 501 [1862]). Although the Morrill Act was a federal law, prosecution of offenders d e p e n d e d u p o n territorial enforcement procedures t h a t required an individual suspected of violation u n d e r the act to be tried only after he h a d first been indicted by a grand jury. G r a n d jurors were selected from a list of names provided by the county court, of which the probate j u d g e was a m e m b e r . See U t a h Territory, Acts . . . Passed by the Utah Legislative Assembly . . . Eighth Annual Session (Great Salt Lake City, 1 8 5 9 ) , " A n Act Defining W h o Are Exempt from, Serving on Juries, a n d the M o d e of Procuring G r a n d a n d Petit J u r o r s a n d Juries . . ." Sees. 2 a n d 4, p . 5, approved J a n u a r y 2 1 , 1859. N o a t t e m p t was m a d e to secure indictments u n d e r this act, largely because federal officials reasoned t h a t the county court would allow only M o r m o n s who were sympathetic toward polygamists to sit as jurors. Because n o g r a n d juries were impaneled, no d o c u m e n t a t i o n was produced to sustain the claims of those w h o criticized t h e p r o b a t e judges on this count. Only with the passage of a n o t h e r federal law, the 1882 E d m u n d s Act, did the government successfully prosecute polygamists. U . S . , Statutes at Large, vol. 22, p. 30 ( 1 8 8 2 ) . 20 Names of bishops a n d other i m p o r t a n t officials were d r a w n from A n d r e w Jenson, Encyclopedic History of the Church of Jesus Christ of Latter-day Saints (Salt Lake City: Deseret News Publishing Co., 1 9 4 1 ) . 21 Esshom, Pioneers, p. 1170, reports t h a t Silas Smith was a bishop of Provo, although he does not give the w a r d or date of service. Jenson makes no mention of Smith as a bishop of any U t a h County ward.

Aaron Johnson, left, served as probate judge in Utah County and as an LDS bishop. Although a Mormon, Zerubabbel Snow, right, was not a church officeholder. USHS collections.

Dominicus Carter concurrently served as a probate judge and first counselor or acting president of Utah Stake from 1856 to approximately 1859. John Taylor who presided over the court from approximately 1868 to 1870, was highest in the Mormon hierarchy. During the period Taylor served as judge he was also an apostle in the church. Only Zerubabbel Snow, judge from 1863 to approximately 1866, and former territorial associate supreme court and district court justice, although a Mormon, did not hold a similar ecclesiastical office. In other words, during all but three of the twenty-two years in which the probate courts held their unusual powers, judgments were rendered by judges who held positions of leadership in the Mormon church. Mormons also held a high percentage of grand, civil petit, and criminal petit juror positions. From the following table, it is apparent that in all years analyzed, juror positions were monopolized by Mormons. JUROR POSITIONS BY M O R M O N / N O N - M O R M O N

1855 Total Juror Positions Percentage Filled by Mormons Percentage Filled by Non-Mormons

39 95% 5

1860

118 95% 5

CLASSIFICATION 22

1865

109 86% 14

1870

24 100% â&#x20AC;&#x201D;

Total

290 92% 8

2 " T o determine the above classification of jury members, 50 percent of grand, civil petit, a n d criminal petit jurors listed in court documents were randomly selected a n d compared against

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That 95 percent of the jurors were Mormon during 1855 and 1860 is not surprising, given the fact that the population was probably at least proportionately represented. 23 Even as late as 1867, inroads made by Gentile soldiers, merchants, and miners boosted the non-Mormon population to only 7 percent. When compared to this figure, the proportion of Mormons sitting on juries in 1865 represented less than the corresponding Mormon share of the population. However, Mormons occupied 100 percent of juror positions in 1870, a figure well above even the 1874 Mormon population estimate of 83 percent. The preceding information, therefore, may shed some light upon the question of whether there existed a vehicle by which Mormons, if they so elected, could inflict injustice upon litigants who did not share their religious convictions. Most significantly, these data suggest that Mormons, because they monopolized judgeships and juror positions, held sufficient collective power to control the outcome of court proceedings. Whether this resource of judicial power was tapped may find partial answer in an examination of certain procedural aspects of the probate court's operation.24 One perspective of judicial procedure is an analysis of the relative percentages of Mormons and non-Mormons who contested each other in civil disputes.25 Such a study is relevant because litigants could elect to file complaints before a Mormon probate judge or before a non-Mormon district court judge.26 Therefore, if Mormon plaintiffs when computed as a percentage of the total plaintiffs in civil suits where Mormons and non-Mormons membership records of the M o r m o n church. Jury composition was analyzed for the vears 1855 1860, 1865, a n d 1870. 23 See Paul A. Wright, " T h e Growth a n d Distribution of the M o r m o n and Non-Mormon Populations in Salt Lake City" ( P h . D . diss., University of Chicago, 1 9 7 0 ) , p p . 13-15. Wright notes t h a t the first reliable estimate of the non-Mormon population for Salt Lake City was recorded at 7 percent in 1867. H e reports 17 and 25 percent as the a p p r o x i m a t e non-Mormon population percentage for the years 1874 and 1887, respectively. This analysis incorporates figures describing Salt Lake City's population distribution because no corresponding breakdown for U t a h County was found. 24 T h e term " p r o c e d u r e " is intended in this study to refer to various administrative aspects of the court's activities r a t h e r than to the procedural posturing that arises within the trial of a case. 2o Mormons a n d non-Mormons who opposed each other comprised 37 percent of the total 114 litigants n a m e d in filed civil complaints and 36 percent of the total 78 litigants in civil cases tried. M o r m o n s contesting other Mormons constituted 54 percent of the total litigants in civil actions filed and 51 percent of litigants named in cases tried. N o n - M o r m o n s named in suits involving only non-Mormons were 9 percent of the total litigants in actions filed a n d 13 percent of those in cases tried. Only cases in which M o r m o n s a n d non-Mormons were opposed are analyzed here because of the likelihood t h a t some potential litigants in the M o r m o n v. M o r m o n category took their civil disputes to ecclesiastical authorities or church courts for settlement. M Documents for the First District Court which sat in Provo indicate t h a t this alternate tribunal to the probate court was available at some period of time during each of the years analyzed for this study. U t a h County Clerk's Office, microfilm and h a n d w r i t t e n records of the First and Second District U . S . Courts for the Territory of U t a h .

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were opposed are found to exceed the estimated percentage of Mormons in the population, an eagerness on the part of church members or a reluctance by non-Mormons to take their disputes to reputedly biased probate courts may be indicated. Conversely, statistics demonstrating that the percentage of non-Mormons in relation to the non-Mormon population filed an equal or greater percentage of civil complaints possibly suggests that the court had no such reputation for prejudicial treatment of Gentiles and that non-Mormons were essentially confident of receiving a fair hearing. The following table applies this criterion to civil cases filed before the Utah County Probate Court. Although small sample sizes for individual periods qualify conclusions drawn from the data, this computation reveals that for the first three periods analyzed, the actual number of nonMormons filing suit exceeded the number of Mormon complainants. Thus, the percentage of non-Mormons suing Mormons is significantly greater than the corresponding percentage of non-Mormon population: 73 percent of the plaintiffs were not Mormon church members, while even as late as 1874 only 17 percent of the population was non-Mormon.27 M O R M O N / N O N - M O R M O N CLASSIFICATION OF P L A I N T I F F S I N CIVIL C O M P L A I N T S W H E R E M O R M O N S AND N O N - M O R M O N S W E R E O P P O S E D

1855-56 1860-61 1865-66 1870-71 Total Plaintiffs Percentage Mormon Plaintiffs Percentage Non-Mormon Plaintiffs

20% 80

44% 56

8 12.5% 87.5

0 â&#x20AC;&#x201D; â&#x20AC;&#x201D;

Total 22 27% 73

From these statistics it is possible to conclude that the court did not entertain a disproportionately high number of complaints filed by church members. Additionally, the fact that a significant number of nonMormons took their grievances to probate court possibly suggests that the courts were not necessarily notorious for favoring Mormons over the non-Mormons who appeared before them. However, it is also conceivable that Mormons were generally less litigious than non-Mormons. The Saints had been counselled by church leaders to stay out of the courts. Brigham Young denounced public lawsuits in the strongest terms: "What comes of litigation? Poverty and degradation to any community that will encourage it."28 27 28

Wright, "Mormon and Non-Mormon Populations," pp. 13-15. Journal of Discourses, 26 vols. (Liverpool, 1854-86), 11 : 259-60.

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An examination of the number of criminal actions filed and tried for each category of defendant presents a somewhat different characterization of the court. Compared to the distribution of population, the following data show that a higher proportion of non-Mormons than Mormons were indicted and brought to trial for criminal offenses.29 That is, non-Mormons, who as late as 1874 comprised 17 percent of the population, accounted for 40 percent of the total ninety defendants indicted and 42 percent of the total sixty-six defendants tried. Although one interpretation of such findings may be that the non-Mormons were generally more lawless than Mormons, another feasible explanation is that non-Mormon criminal offenders were more diligently pursued than were Mormons or were even harassed by law enforcement officials and the courts. Or, perhaps certain territorial criminal statutes were discriminatory against non-Mormons. 30 MORMON / N O N - M O R M O N CLASSIFICATION OF DEFENDANTS NAMED IN CRIMINAL INDICTMENTS

1855-56 1860-61 1865-66 1870-71 Total Defendants Percentage Mormon Defendants Percentage Non-Mormon Defendants ...

5 40% 60

51 57% 43

30 63% 37

4 100%) .—

Total 90 60% 40

DEFENDANTS NAMED IN CRIMINAL CASES TRIED

1855-56 1860-61 1865-66 1870-71 Total Defendants 3 Percentage Mormon Defendants — Percentage Non-Mormon Defendants ... 100

38 55% 45

25 68% 32

0 — •—

Total 66 58% 42

Although non-Mormons were indicted and tried for a significant share of the criminal violations, they were not accused of the more serious crimes in higher incidence than were their Mormon counterparts. The subclassification of criminal cases as felonies and misdemeanors 29 As noted previously (n. 19 above) the probate courts played an indirect role in criminal indictment proceedings. 30 T h e r e is the possibility, although unproven and highly speculative because no research has been done, t h a t some criminal matters involving Mormons during the period here analyzed were tried in church tribunals; but these courts certainly did not exercise criminal powers concurrent with the territorial courts.

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shows that indictments for felonies comprised essentially equivalent percentages of all indictments delivered against both Mormons and nonMormons; non-Mormons accused of felonies constituted 25 percent of the thirty-six non-Mormons indicted; Mormons charged with felonies were 26 percent of the fifty-four Mormons indicted. Similarly, Mormons and non-Mormons were both tried for felonies in roughly the same incidence: Mormons tried for felonies constituted 32 percent of the Mormon defendants named in criminal actions; non-Mormons tried for felonies comprised 29 percent of the twenty-eight non-Mormons tried. However, data indicating that Mormons were granted bail more frequently than non-Mormons may suggest possible bias. For those years in which bail was consistently recorded,31 bond was granted in 65 percent of the total twenty cases where Mormons were defendants, yet in only 33 percent of the total eighteen criminal actions filed against nonMormons. Additional evidence that Mormons were treated more leniently by the courts possibly would be produced by a comparative analysis of pleas registered in criminal cases. Documentation that Mormons pled not guilty in higher incidence than non-Mormons might suggest that Mormons by pleading such also registered their expectations for a ruling in their favor. However, the following tabulation which shows that proportionately fewer Mormons than non-Mormons chose to plead not guilty may indicate that Mormon litigants did not anticipate particularly favorable treatment at the hands of Mormon judges and juries. CRIMINAL DEFENDANT PLEAS : TOTAL FOR ALL YEARS

Mormon Pleas Guilty Not Guilty

Non-Mormon Pleas 21 12

64% 36

Guilty Not Guilty

11 10

52% 48

An alternate explanation of the above data may be that Mormons pled guilty in higher incidence than non-Mormons because they subscribed to a theology that required confession and reparation. Particularly if Mormons perceived the Mormon-operated probate court as an extension of the ecclesiastical system of the church, they may have pled guilty to meet their religious obligation for repentance. 31

Court records list bail grants consistently only for the years 1860, 1865, and 1871.

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As a final observation it may be noted that a judge who was partial to fellow church members possibly w7ould dismiss a higher percentage of actions brought against Mormons than non-Mormons. However, only slightly more criminal cases involving Mormons were dismissed: actions were dropped against 9 percent, or five of the fifty-four Mormons, and 6 percent, or two of the thirty-six non-Mormons indicted. Neither were dismissals of civil complaints an apparent instrument of discrimination. Only a single case, one in which a non-Mormon brought suit against a Mormon, was dismissed. Summarized, the findings of this examination of procedural operations of the probate court neither totally refute nor substantiate the charge that non-Mormons were the target of partisanship. On the one hand, certain data, such as those demonstrating that proportionately more non-Mormons than Mormons were indicted and brought to trial for crimes and that Mormons were granted bail in higher incidence than were non-Mormons, may sustain the accusations of the probate court's critics. Yet, supporting the argument that the court's operations were evenhanded are statistics indicating non-Mormons were not accused of the more serious criminal offenses more regularly than were Mormons. That criminal indictments against Mormons were not more frequently Center Street, Provo, 1870s. USHS collections.

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, â&#x20AC;&#x201D;W?

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dismissed also suggests that the courts treated Mormons and nonMormons with impartiality. However, other possible inferences drawn from the balance of the data are less conclusive. Calculations demonstrating that more non-Mormons than Mormons elected to take their civil disputes to the probate courts may suggest either that non-Mormons expected a fair hearing of their grievances or that Mormons avoided litigation and possibly sought alternative remedies to disputes in which they were a party. That fewer Mormons than non-Mormons filed not guilty pleas in criminal cases possibly indicates that Mormons did not expect the court to rule routinely in their favor or that they felt compelled to confess their guilt before the court. The nonprocedural decisions and final judgments rendered by judges and juries also serve as possible indicators of whether or not probate courts waged a judicial campaign against Gentiles. For example, the following data, which classify decisions of tried civil cases as proMormon or not, appear to indicate that a litigant's membership or nonmembership in the Mormon church was not a controlling factor in the court's ruling. If anything, this information suggests that the probate judges favored the plaintiff over the defendant regardless of his church membership. Of course, it can be argued that the individual bringing the suit would most often win his case because he probably had a credible complaint before approaching the court.

**?*L

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C I V I L C A S E D E C I S I O N S R E N D E R E D BY J U D G E S AND J U R I E S 3 2 T O T A L FOR A L L Y E A R S

(Plaintiff) (Defendant)

Mormon v. Non-Mormon

Decision for: Plaintiff Defendant

3 2

Pet. 60% 40

Mormon v. Mormon

19 2

Pet. 90% 10

Non-Mormon Non-Mormon v. v. Mormon Non-Mormon Pet. 9 100% 0 —

Pet. 5 100% 0 —

Total

36 4

Pet. 90% 10

An examination of the judges' rulings in criminal cases is equally informative. The figures indicate that judges did not acquit a greater proportion of Mormons of crimes than non-Mormons. In fact, the reverse was true: non-Mormons were freed more frequently than Mormons. C R I M I N A L C A S E D E C I S I O N S R E N D E R E D BY J U D G E S T O T A L FOR A L L Y E A R S

M o r m o n Defendants

Pet.

Acquitted

Convicted

N o n - M o r m o n Defendants

Pet.

12.5%

Acquitted

87.5

Convicted

23% 77

Jurors apparently were even more lenient toward non-Mormons than judges. Jurors acquitted of criminal charges a significantly greater proportion of non-Mormons than Mormons. A possible explanation may be found by recalling that non-Mormons were more regularly indicted and tried than Mormons — conceivably because the community regarded Gentiles with a higher degree of suspicion than they did fellow Saints. The high number of non-Mormons acquitted may indicate that the courts set free non-Mormons who had been turned over to the courts on the basis of unsupported charges. CRIMINAL CASE DECISIONS RENDERED BY JURIES TOTAL FOR A L L YEARS

Mormon Defendants Acquitted Convicted

Pet. 4 18

18% 82

Non-Mormon Defendants Acquitted Convicted

Pet. 9 6

60% 40

32 Methodology from Powell, "Fairness," p. 259, was adapted for construction of tables classifying decisions. Decisions of both judge and jury are combined in this table because jury rulings in civil cases were too few to warrant separate analysis.

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That decisions of the probate courts were impartial possibly may be deduced from evidence that non-Mormons and Mormons were convicted of the more serious offense of felony in roughly the same incidence. This study found convictions for felony comprised 19 percent of the combined misdemeanor and felony convictions for each category of defendant.33 An analysis of the difference between monetary settlements demanded and awarded in civil cases also provides a possible measure of the court's fairness. One may expect a court biased against non-Mormons to refuse non-Mormon demands of compensation for damages, debt claims, etc. However, of the total twenty-three civil cases that resulted in monetary awards to either non-Mormon or Mormon complainant, only three were for amounts less than that requested. Only one of these three grants involved a case in which a non-Mormon was the plaintiff. An assessment of the harshness of prison sentences or fines imposed by the court is a more difficult exercise. Because only scant details of the cases survive, it is impossible to identify like cases that may or may not have resulted in like punishments. Nonetheless, that the courts did not discriminate against non-Mormons perhaps can be derived from evidence showing that within general categories of offenses, fines and sentences were essentially the same for the two classes of defendants. For example, a typical fine assessed both Mormons and non-Mormons convicted of larceny was $100. The normal range of fines levied Mormons and nonMormons convicted of riot was $5 to $25. The one Mormon and two non-Mormons found guilty of committing grand larceny were sentenced to twenty-four months at hard labor in the penitentiary.34 The foregoing analysis of decisions and rulings rendered by judges and juries produces a rather clear pattern of impartial treatment of nonMormons by the probate court. An important indicator of possible bias â&#x20AC;&#x201D;the decision ratioâ&#x20AC;&#x201D;which shows that plaintiffs were routinely favored over defendants, remains stable and consistent for the various combinations of litigants involved in civil disputes. Additionally, non-Mormons 33 Mormons were convicted of 26 misdemeanors and 6 felonies. Non-Mormons were convicted of 13 misdemeanors and 3 felonies. 34 Of the total 48 individuals convicted of crimes, 40 were fined and 8 sentenced. Of those found guilty of committing larceny, 3 were non-Mormon and 17 were Mormon. For convictions of riot, 8 non-Mormons and 3 Mormons were fined. Perhaps few sentences were imposed because of lax security at the penitentiary. Between 1864 and 1871, due to insufficient funds, the prison did not even employ a night guard. Consequently, many prisoners escaped. Between 1855 and 1878, 47 of the 240 convicts escaped; an additional 12 were killed in escape attempts. James B. Hill, "History of Utah State Prison, 1850â&#x20AC;&#x201D; 1952" (Master's thesis, Brigham Young University, 1952), pp. 47 and 145.

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were not more regularly convicted of crimes than Mormons, neither were they found guilty of more serious offenses. Finally, statistics pertaining to monetary awards granted in civil disputes indicate that both nonMormon and Mormon complainants who won their cases received the compensation they had requested. CONCLUSION

The inferences and conclusions proposed by the preceding analyses do not add up to proof that between 1855 and 1872 the judges and juries of the Utah County Probate Court manipulated judicial proceedings and therefore worked a dual brand of justice upon those who pled their cases before them. An examination of court functionaries verifies that Mormons, by virtue of their domination of judgeships and juror positions, and possibly the Mormon church, by virtue of its hold on the Saints, could have regulated court proceedings. However, analyses of selected procedural elements of the court's operation are not persuasive as evidence that such potential powers were in fact exercised. For instance, that the court was biased against Gentiles may be indicated by data describing bail awards and relative percentages of Mormons and nonMormons indicted and tried for crimes. Yet, a review of criminal cases dismissed and a study of the seriousness of accusations filed against Mormons and non-Mormons indicted and tried for criminal offenses conceivably support the theory that the court treated Mormons and nonMormons with equality. Provided by the last section of this study, an analysis of nonprocedural decisions and final judgments rendered by the court is the strongest evidence that probate judges and jurors fairly administered the law to both Mormons and non-Mormons. Classifications of decisions in tried civil and criminal cases as favoring Mormons or non-Mormons do not show that Mormons were accorded greater leniency than were their counterparts. Assessments of the incidence of convictions for felony, monetary awards in civil cases, and the harshness of punishments in criminal cases fail to confirm claims that court rulings against nonMormons were usually severe. Thus, the true basis for the accusations cast at the probate courts and the Mormons necessarily rests upon extradocumentary evidence, not upon the records reflecting the actual quality of justice delivered by Utah probate judges and jurors. One source of conflict may have been the district judges' distress at having their powers assumed by inferior

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courts or their aggravation at being deprived actual business and fees. Perhaps the conflict erupted as it did because of the attachment of the issue of the courts' unusual jurisdiction to the emotionally volatile controversy surrounding the practice of polygamy. More realistically, though, what began as an efficient plan to meet pressing needs and exigencies developed into a symbol of the political struggle between Mormons and federal officials that prevailed throughout the latter half of the nineteenth century. To Mormons the probate court system stood for their cherished desire for autonomy and home rule. To federal officials the probate courts represented the pervasive political dominion of the polygamous Mormon church â&#x20AC;&#x201D; a barbarous and subversive power they were convinced must be eradicated.

Good Guys" vs. Good Guys": Rudger Clawson, John Sharp, and Civil Disobedience in Nineteenthcentury Utah ii

BY J A M E S B . A L L E N

I J N SEPTEMBER 29, 1885, MORMON

Bishop Hiram B. Clawson joined his son, Rudger, as a convict in the Utah Territorial Penitentiary. Both were imprisoned for violating a constitutional law of the landâ&#x20AC;&#x201D;the law against plural marriage. But before going to prison Bishop Clawson exJames B. Allen is professor of history at Brigham Young University. H e expresses great appreciation to Breck England a n d Glenn V. Bird for research assistance. This paper was first given as a lecture at the College of Eastern U t a h in May 1976 as a part of a BYU lecture series on "Public Ethics in an Era of Challenge and Change" funded by the U t a h Endowment for the Humanities.

Top: Rudger Clawson in prison garb. Bottom: Bishop John Sharp. USHS collections.

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pressed no regrets for what he had done. "To me there are only two courses. One is prison and honor, the other is liberty and dishonor."1 Two days later another Mormon bishop, John Sharp, sat before the Salt Lake Stake High Council. Because he had recently decided to obey the law of the land by giving up plural marriage, and to counsel others to do so, he was required to resign his bishopric. Already he was taking a barrage of criticism from life-long friends and revered church leaders. "But," he later said, "I acted according to the dictates of my conscience, and just as in all wisdom I should have acted."2 Today, when such terms as Watergate, campaign funding, and even FBI call forth distressing images of corrupt people in high places, one almost forgets another kind of public ethic. Under what circumstances is dissent from civil law morally justified, especially among a religious people who hold that their nation's Constitution is divinely inspired and that they have a religious duty to honor, obey, and sustain the law? To what degree is a dissenting group morally obliged to tolerate an opposite view within its ranksâ&#x20AC;&#x201D;that is, the view that the law from which it is dissenting really ought to be obeyed? These questions have been asked in every age and will undoubtedly be asked again. The experiences of two prominent Latter-day Saints in nineteenth-century Utah, Rudger Clawson and John Sharp, bring them into dramatic focus. This paper does not propose to answer the moral dilemma posed by these questions; it will only suggest that it is not always a question of the "bad guys" versus the "good guys," that there are times when "good guys" can be on opposite sides of the same questionâ&#x20AC;&#x201D;even a question of obedience to constitutional law. To deal with such issues is to demonstrate the pitfalls of harsh judgments and to suggest that moral Tightness or wrongness is not always absolute in terms of specific actions. Rather, if one is to make any judgment at all it must be based on examination of motives, intentions, and integrity. The problem of dissent and civil disobedience in nineteenth-century Utah fits into an important American pattern. In every age some people have found certain laws offensive to their fundamental values and have taken upon themselves the burden of opposing and openly violating them. The Puritan fathers dissefited both from the Church of England and from the laws that made it difficult for them to worship freely. Ironically, when they gained control of New England they tolerated even less deseret News, September 29, 1885. 2 Salt Lake Tribune, November 7, 1885.

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dissent than the mother country had. Roger Williams, dissenting from them, insisted that government should have no influence on matters of strictly religious concern, and for that he was banished. The American Revolution was the result of dissent from laws considered unjustâ&#x20AC;&#x201D;a dissent fanned into flame by the powerful words of Thomas Paine and brilliantly justified on the basis of higher law by Thomas Jefferson. Every American warâ&#x20AC;&#x201D;including the Revolution itselfâ&#x20AC;&#x201D;has had its dissenters. Perhaps a third of the American colonists remained loyal to the Crown, clearly dissenting from the dissenters. Dissenters from public policy agitated the question of slavery before the Civil War, and dissenters from public policy brought about some positive business reforms near the end of the nineteenth century. In recent times civil rights marches, sit-ins, and other peaceful violations of the law for the purpose of achieving reform were all the result of a conviction that a higher law compelled and even justified violating an unjust law of man. Religiously, the refusal of the Jehovah's Witnesses to salute the flag had similar overtones. In 1846 the United States declared war on Mexico, and young Henry David Thoreau, among others, objected. To him the war was unconstitutional, immoral, and totally unjustified, and to emphasize his dissent he refused to pay his taxes. His sense of loyalty to a higher moral law compelled him to disobey the law of man. As expected, he was soon imprisoned, and he was indignant when a well-meaning aunt bailed him out. Imprisonment was the symbol of his conscious disobedience of the law of man, and it became a catalyst for one of his most famous essays, "On the Duty of Civil Disobedience." Thoreau w7as deeply concerned for freedom of the individual, as opposed to the tyrannical will of the majority so often expressed through legislation. "Must the citizen even for a moment," he asked, "or in the least degree, resign his conscience to the legislator?" His resounding answer was NO. "Under a government which imprisons unjustly," he proclaimed, "the true place for a just man is also a prison." But how does a person decide what law7 he is morally obliged to disobey? During the turbulent 1960s Supreme Court Justice Abe Fortas observed that anyone assuming to make that judgment that a law is in this category assumes a terrible burden. He has undertaken a fearful moral as well as legal responsibility. He should be prepared to submit to prosecution by the state for the violating of the law and the imposition of punishment if he is wrong or unsuccessful.

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Fortas was also concerned with the attitude of dissenters toward those of their own group who dissent from them: Dissent and dissenters have no monopoly on freedom. T h e y must tolerate opposition. T h e y must accept dissent from their dissent. A n d they must give it the respect a n d the latitude that they claim for themselves. 3

To the Mormons of nineteenth-century Utah the problem of civil disobedience was one of utmost urgency. They faced it first in 1862 when the federal government outlawed their practice of plural marriage in the Morrill Anti-Bigamy Act.4 But for the Latter-day Saints polygamy was a religious principle protected by the Constitution of the United States. The law was a violation of their deepest religious convictions, and it was impossible for them to sustain or obey it. Their first defense was simpleâ&#x20AC;&#x201D;they merely declared that the law was unconstitutional and that, therefore, they need not obey it. Five years later Apostle John Taylor expressed the prevailing attitude: T h e Republicans . . . have been very fond for a long time of talking a b o u t a higher law of some kind. We, too, h a v e a higher l a w . . . a law t h a t emanates from G o d ; a law that is calculated to p r o m o t e the best interests a n d the happiness of this people. . . . T h e n d o you profess to ignore the laws of the land? N o , not unless they are unconstitutional, then I would d o it all the time. Whenever the Congress of the United States, for instance, pass a law interfering with my religion, or with my religious rights, I will r e a d a small portion of t h a t instrument called the Constitution of t h e U n i t e d States, n o w almost obsolete, which says â&#x20AC;&#x201D;"Congress shall pass no law intefering with religion or the free exercise thereof;" a n d I would say, gentlemen, you m a y go to Gibraltar with your law, and I will live m y religion.""'

In general, the Saints shrugged their shoulders and went on living their higher law, believing that their position would be vindicated if the antibigamy law reached the Supreme Court. In 1879 it did, and the dilemma faced by the Saints suddenly assumed monstrous proportions. In the Reynolds case the law was upheld as constitutional, the court stating that although laws "cannot interfere with mere religious belief and opinions, they may with practices." 6 The Mormons were shocked, 3 Abe Fortas, Concerning Dissent and Civil Disobedience (New York: Signet Books. 1968), pp. 125-26. 4 The law stated that any person having a husband or wife living who should marry another would be guilty of bigamy and subject to a fine of $500 and imprisonment for five years. Further, it invalidated the law of Utah Territory that had incorporated the Church of Jesus Christ of Latter-day Saints and made it unlawful for any religious corporation in any territory of the United States to hold real estate greater than $50,000. 5 Journal of Discourses, 26 vols. (Liverpool, 1854-86), 11:343. 6 United States v. Reynolds, 98 U.S. 145.

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for the decision presented a shattering blow to their confidence in the ultimate protection of the Constitution. Irreversibly, the Anti-Bigamy Act was now the law of the land, and a resort to traditional constitutional arguments in defending civil disobedience was no longer valid. But to the Saints it was not that simple. They still had their wives and children, whom the law, as interpreted by federal judges, would require them to disown. Equally important, they still had their sincere religious convictions, which the law could not destroy and which their consciences could not allow them to ignore. They could discontinue plural marriage only by the same authority which, they believed, had commanded itâ&#x20AC;&#x201D;the voice of revelation. John Taylor, leader of the church since the death of Brigham Young, was interviewed by O. J. Hollister, collector of internal revenue and a correspondent of the New York Tribune, a few days after the Reynolds decision. Like a commanding general burning with the unshaken conviction that his cause could never fail, Taylor announced the philosophy of civil disobedience that would prevail among the Latterday Saints for the next eleven years: I k n o w t h a t God has given this [plural marriage] to us for o u r guidance. You m a y not know, b u t I know t h a t this is a revelation from G o d a n d a c o m m a n d to his people, a n d therefore it is m y religion. I do not believe t h a t t h e S u p r e m e C o u r t of the U n i t e d States or the Congress of t h e U n i t e d States has any right to interfere w i t h m y religious views, a n d in doing it they a r e violating their most sacred obligations. 7

The Founding Fathers intended to protect religious liberty, yet the government, Taylor maintained, had violated that trust. 8 Therefore, the law was still unconstitutional; the court was wrong and it was the government, not the Mormons, that was the transgressor. W e are not t h e parties w h o p r o d u c e this antagonism, it is m e n w h o place themselves in antagonism to the Constitution of the U n i t e d States. W e are governed by t h e law of God, which is not in violation of t h a t Constitution. O u r revelation given in August 1831 specifically states t h a t if we keep t h e laws of G o d we need not break the laws of the land. Congress has since, by its act, placed us in antagonism to w h a t we term an unconstitutional law, a n d it n o w becomes a question w h e t h e r we should obey God or m a n . 9

The First Amendment provision that Congress should make no law respecting the establishment of religion or prohibiting its free exercise 7 The Supreme Court Decision in the Reynolds Case â&#x20AC;˘ Interview between President John Taylor and O. J. Hollister, reported by G. F. Gibbs (Salt Lake City, 1879), p. 4. 8 Ibid., p. 6. â&#x20AC;˘ Ibid., pp. 6-7.

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John Taylor justified civil disobedience with regard to antipolygamy legislation on the basis of First Amendment protection of religious freedom, despite Supreme Court rulings. USHS collections.

superseded all other opinion, even the opinion of the court, and this idea would prevail as long as Taylor lived. The Saints would oppose the law by continuing to violate it, though they hoped eventually it would be changed. They would also continue to preach the doctrine of plural marriage and would bow to no one in their conviction that what they taught was true. Even if it meant imprisonment and fines, their determination to prevail would be their most potent weapon and would result, they believed, in victory. The year 1879 seemed to put new life into the forces determined to destroy polygamy and new determination into the hearts of the Saints to stand their ground.10 Some of those who led the battle against polygamy, were, of course, seeking little more than personal political or economic advantage. Others were well-meaning reformers, morally outraged at the practice and genuinely concerned that the Saints conform " For an in-depth discussion of this period of conflict, see Gustive O. Larson, The Americanization of Utah for Statehood (San Marino, Calif.: Huntington Library, 1971). For a summary treatment see James B. Allen and Glen M. Leonard, The Story of the Latter-day Saints (Salt Lake City: Deseret Book Co., 1976), chap. 12. See the bibliography for that chapter for more intensive reading.

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to marriage standards they considered the foundation of American society.11 The Mormons were equally sincere in their belief in the moral Tightness of their cause and that through the process of civil disobedience they were only sustaining a higher law. Events moved rapidly toward a judicial crusade in Utah of mammoth proportions. In March 1882 the Edmunds Act strengthened the Anti-Bigamy Act of 1862 and distinguished between polygamy and unlawful cohabitation. 12 Anyone who had a husband or wife living and then married another was guilty of polygamy and subject to five years in prison and a $500 fine. Unlawful cohabitation was defined as living in a polygamous relationship and was punishable by six months in prison and a $300 fine. These and other stringent provisions added teeth to the law, and the judicial crusade began almost immediately. For their part, the Mormons took the same attitude toward the Edmunds Act that they had toward the Anti-Bigamy Act: it was unconstitutional, for it was designed to interfere with the free exercise of religion, any act of Congress or decision of the Supreme Court notwithstanding. Such a view could hardly be upheld in constitutional law, but in a sense John Taylor had no other alternative. To abandon plural marriage, either in principle or practice, was to him unthinkable; to admit that the Saints were violators of constitutional law was almost equally unthinkable. With statehood for Utah one of the most urgent political objectives of the Saintsâ&#x20AC;&#x201D;the fourth statehood effort began shortly after passage of the Edmunds Actâ&#x20AC;&#x201D;they could not admit violation of constitutional law when willingness to uphold the Constitution was a necessary criterion for statehood. John Taylor took this cruel dilemma by both horns and continued to denounce the law as unconstitutional: W e have no fault to find with our government, we deem it the best in the world, b u t we have reason to deplore its maladministration. . . . W e shall abide all constitutional law, as we have always d o n e : b u t . . . we will contend inch by inch legally a n d constitutionally, for o u r rights as American citizens. . . a n d p l a n t ourselves firmly on the sacred guarantees of t h e constitution. 1 3

The Mormons began to challenge certain provisions of the Edmunds Act. One was the method employed to impanel jurors that allowed dismissal of any prospective juror who believed in polygamy, 11 See, for example, Thomas G. Alexander's characterization of Judge Charles S. Zane in his "Charles S. Zane, Apostle of the New Era," Utah Historical Quarterly 34 (1966) :290-314. 12 Named after Sen. George F. Edmunds, Republican of Vermont, who had been active in efforts to reconstruct the South after the Civil War. 13 Journal of Discourses, 23 :65-67; Larson, Americanization of Utah, pp. 96-97.

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whether he practiced it or not. This stipulation was upheld when Rudger Clawson's case reached the Supreme Court in 1885.14 The Saints also objected to the fact that the Utah Commission, established under the Edmunds Act, had formulated a test oath which, if not sworn to, would disqualify them from voting. In a decision of March 23, 1885, their view was upheld, though the same case struck down their claim that the Edmunds law was an ex post facto law and therefore unconstitutional. Polygamy was held to be a continuous violation, so that if it continued after the laws were passed a person could be prosecuted.15 In these and other cases the court slowly clarified the technicalities as well as the constitutionality of antipolygamy prosecution. Nevertheless, the Saints, under the leadership of the venerable John Taylor, continued to justify civil disobedience by interpreting their course as conformity to the spirit of the Constitution. Patriotism was still a virtue, so it was not inconsistent for the First Presidency to issue this statement on July 24, 1885: "Rally around the standard of freedom, uphold the flag of the Republic, sustain the principles of human liberty, and maintain inviolate the Constitution of the United States and all laws in accordance therewith, and God shall smile upon you."16 Such sentiment regarding constitutional law must have seemed unbelievable to Charles S. Zane and other federal judges, but it was consistent in the minds of those who had decided that not even a majority of the justices of the Supreme Court, influenced as they were by public opinion, were proper judges of constitutionality when it came to LDS religious practice. In October the First Presidency, who had gone into hiding, sent this message reaffirming their position to the general conference of the church: W e repeat, t h a t we desire t h a t all men should be aware of the fact t h a t we have been the upholders of the Constitution a n d laws enacted in pursuance of that sacred instrument. We still entertain the same patriotic disposition, and propose to continue acting in conformity with it to the last. Neither have we any desire to come in active conflict even with statutes t h a t we deem opposed to the Constitution both in letter a n d spirit. Whatever opposition has been offered in that line has been only of such a character as is justified by the usages and customs of this a n d all other civilized countries. . . . It must be contended, however, t h a t . . . there "See Clawson v. United States, 114 U.S. 477, which was decided on April 20, 1885. Larson, Americanization of Utah, p. 109,'states that it was decided on January 19, but this is a mistake. The January 19 case, Clawson v. United States, 113 U.S., 143, dealt only with Clawson's objection that he had not been allowed bail while his appeal was pending. 15 Murphy v. Ramsay, 114 U.S. 15. M James R. Clark, ed., Messages of the First Presidency of the Church of Jesus Christ of Latter-day Saints, 6 vols. (Salt Lake City: Bookcraft, 1965-75), 3:22.

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never c a n b e any h o p e of o u r yielding u p , u n d e r any circumstances, a principle of conscientious or religious conviction. W e r e we to m a k e such a surrender, o u r c o n d u c t in t h a t respect w o u l d n o t b e in h a r m o n y with the g u a r a n t i e s of the Constitution, which we are in d u t y b o u n d t o uphold. 1 7

The First Presidency rationalized their civil disobedience by taking the view that the higher law was the only true basis for judging the constitutionality of man's law. Ultimately, not even the Edmunds Act was enough to bring about a change in policy, and in 1887 the Edmunds-Tucker Act imposed even heavier restrictions upon the Saints, disincorporated the church, provided for the confiscation of its property, and threatened to destroy it as a viable political entity. Three years later, after it became clear that the very existence of the church was at stake, President Wilford Woodruff announced his now-famous Manifesto advising the Saints to contract no marriages against the law of the land. As explained by George Q. Cannon, a counselor to Woodruff, the Saints were now acting under the spirit of a revelation received by Joseph Smith back in 1841: Verily, verily, I say u n t o you, t h a t when I give a c o m a n d m e n t to any of the sons of m e n to do a work u n t o my n a m e , a n d those sons of m e n go w i t h all their m i g h t a n d with all they h a v e to perform t h a t work, a n d cease n o t their diligence, a n d their enemies come u p o n t h e m a n d h i n d e r t h e m from p e r f o r m i n g t h a t work, behold, it b e h o o v e t h m e to r e q u i r e t h a t work no m o r e at the h a n d s of those sons of m e n , b u t to accept of their offerings. 18

"It is on this basis," Cannon delared, "that President Woodruff has felt himself justified in issuing this Manifesto." 19 Technically, the reformers had won their limited objectives, but the Mormons had also won at least a moral victory. They had demonstrated their willingness to bear any attack on their convictions and had not abandoned their religious practice until they believed the voice of revelation had commanded them to.20 The judicial crusade of the 1880s created a garrison attitude among the Saints. They defended the principle of plural marriage with steppedup fervor, and for a short time the number of new plural marriages actually increased. After prosecution began under the Edmunds Act, more than a thousand judgments were imposed for unlawful cohabitation. In addition, otherwise law-abiding citizens took up residence on the ,T

Ibid., 3:30. Doctrine and Covenants, 124:49. as See full discourse in Deseret News Weekly, October 18, 1890. 20 See Allen and Leonard, The Story of the Latter-day Saints, chap. 13, for a brief background of the Manifesto, and the bibliography for this chapter for in-depth reading. lX

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undergroundâ&#x20AC;&#x201D;that is, went into hiding to escape prosecution. Among these were the First Presidency of the church and most of the Council of the Twelve Apostles. Those who served time in prison suffered great indignity for conscience' sake and became heroes in the eyes of their coreligionists. The Saints gave the impression of presenting a solid front, but within the ranks there were differing perspectives on what their obligations ultimately must be. The stories of Rudger Clawson and Bishop John Sharp bring that issue into dynamic focus. Rudger Clawson was the first to be tried under the Edmunds Act, and for that he gained a permanent spot in the Mormon hall of fame. He was already a folk hero among the Saints. They remembered him as one of two missionaries in Georgia in 1879 who were set upon by a mob that intended to beat them brutally. When Joseph Standing tried to escape he was shot to death, and the guns were then turned on Clawson. Thinking his time had come, he calmly folded his arms, looked his assailants in the eyes, and said, "Shoot." The mob was unnerved, and let him go.21 Born in 1857, Clawson was the son of Bishop Hiram B. Clawson and his plural wife Margaret Judd Clawson. Hiram was a prominent Utah businessman, a friend and son-in-law of Brigham Young, and, until 1875, superintendent of ZCMI. In 1882 he became bishop of the Salt Lake City Twelfth Ward. His son took naturally to both business and religious commitments. He became a bookkeeper for John W. Young of the Utah Western Railway, sometimes traveled east for his employer, and also kept accounts for a store owned by his cousin Spencer Clawson. His first wife was Florence Dinwoodey, daughter of a wealthy furniture dealer. In 1883 he married Lydia Spencer as a plural wife, obviously in direct violation of the recently passed Edmunds Act. This, together with the fact that he was the prominent son of a prominent Mormon family, made him particularly vulnerable to early prosecution. On April 24, 1884, Rudger Clawson was indicted by a grand jury for polygamy, arrested, and released on $3,000 bond.22 Immediately, his lawyers attempted to have the indictment quashed on the grounds that the grand jury was illegally drawn. The attempt failed, and in October the case came up for trial before Judge Charles S. Zane. 21 For an insight into the respect with which young Clawson was held, see the treatment in Orson F. Whitney, History of Utah, 4 vols. (Salt Lake City, 1892-1904), 3 : 8 7 - 9 5 , and the impassioned 1884 discourse on him by John Taylor in B. H. Roberts, The Life of John Taylor (1892; reprint ed., Salt Lake City: Bookcraft, 1963), pp. 372-77. Whitney summarizes the Clawson trial in History of Utah, 3 : 2 7 8 - 7 9 , 293-320. 22 Deseret News, April 25, 1884.

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The dramatic confrontation between Judge Zane and Rudger Clawson produced a clash of two dynamic forces, neither of which, with the benefit of hindsight, can be judged as morally evil. Like similar magnetic forces, both had great attraction and drew large followings, but when thrown together they repelled each other both figuratively and literally. If Rudger Clawson was the ideal example of an honest, moral, and dedicated Saint determined never to abandon a religious practice, Zane was the prototype of the honorable and dedicated public servant who thought that same religious practice was reprehensible. Just as Clawson's sense of moral integrity compelled him to disobey the law, Zane's sense of public duty compelled him to enforce it with every means at his command. Zane had been a respected attorney in Illinois, and when Abraham Lincoln became president, Zane took his place as William H. Herndon's law partner. From 1875 to 1883 he served as a circuit judge in Illinois, and in 1884 he was appointed chief justice of the Utah Supreme Court. He arrived in Utah late in August and was soon assigned to the Third Judicial District. He was a man of high personal integrity, and his general conduct as a judge was fair and impartial. He came into conflict with the Mormons because polygamy seemed to him to violate the fundamental moral standards of society and ought, therefore, to be eliminated. More important, the laws against it were clear, and he saw it ^ as his responsibility to enforce them strictly and in a manner that would discourage continued violation. His sentences were harsh; although a few of his more extreme interpretations of the law were overthrown, they were the result of an intensive zeal for what he considered a righteous cause. By offering clemency to those Mormons who would agree to abide by the law he hoped to induce others to capitulate, but for those who would not obey the law he offered only punishment to the full extent allowed. His antipolygamy stance was probably not an effort to Judge Charles S. Zane was destroy the church, and it is reasonable determined to enforce the law. to believe that he hoped to end the bitUSHS collections.

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ter conflict with as little retribution as possible. After the Manifesto of 1890 Zane signed a petition requesting official pardons for members of the church and was instrumental in getting the forfeited bail of George Q. Cannon returned.23 Rudger Clawson first appeared in Charles Zane's court on October 2, 1884, only a month after the judge had taken office. Clawson was not ready to plead guilty. If he was going to be punished for violating a law he considered unconstitutional, then the United States would have to go all the way in proving him guilty.24 Clawson himself did not testify, and the parade of witnesses called by the prosecution gave, at best, only hearsay evidence that he was married to a plural wife. Both Lydia Spencer, the alleged plural wife, and Margaret Clawson, the defendant's mother, were subpoenaed as witnesses, but neither could be found. In the end the jury could not agree and the case was dismissed. That night, however, Lydia Spencer was apprehended by federal deputies, and a retrial was quickly ordered. The star witness at first refused to testify, whereupon she was taken to the territorial penitentiary under a threat from the judge that unless she testified she would be kept there indefinitely. The next morning, pale and distraught after a night of anguish, the young girl appeared in court again, sadly ready to testify. Seated in the audience was Orson F. Whitney, a representative of the press and soon to become one of Mormonism's eminent historians. He later described her decision this way: Yet it was not for herself . . . that she wore that look of pain. It was for the man she loved, her husband in the sight of heaven and according to the law of God, as she believed; man's laws and man's belief to the contrary, notwithstanding. The sorrow now felt by the brave girl, who would willingly have gone to prison for an indefinite period for the sake of that husband, the father of her child, was due to the fact that he had requested her to remain silent no longer, but to disclose the truth touching their marital relations.25 2:1 See Alexander, "Charles S. Zane," for a study of his judicial career. See also Whitney, History of Utah, 3:266-69, for a surprisingly balanced discussion of Zane's character. Whitney is more generous with Zane than is B. H. Roberts, A Comprehensive History of the Church of Jesus Christ of Latter-day Saints, Century I, 6 vols. (Salt Lake City: Deseret News Press, 1930), 6 : 1 7 6 - 7 7 . Alexander, pp. 291-92, perhaps exaggerates slightly the dichotomy of opinion on Zane, H e inadvertently leaves the impression that Roberts or Whitney wrote that Zane's object was the "overthrow of Mormonism as a religion." Neither of these authors actually accuses Zane of such an object, though Whitney correctly asserts that, like Judge James B. McKean before him, Zane was charged with "having as his object the overthrow of Mormonism as a religion." But, says Whitney, regarding various charges against McKean, "little if any of these could truthfully be said" of Zane (pp. 2 6 6 - 6 7 ) . Whitney probably characterized him well in the simple statement that, "He was zealous for what he 'believed to be right, and as persistent in opposing what he believed to be wrong" (p. 267). 24 An account of the trial and conviction is in Whitney, History of Utah, 3:293-319. 25 Ibid.. 3 : 3 1 3 .

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It was one of the shortest trials on record. The distraught Lydia took only a few minutes to testify that she had been married in 1883 to Rudger Clawson. She then left the courtroom escorted by her father-inlaw. With no further argument from either side, the jury retired for seventeen minutes and returned a verdict of guilty on two counts: polygamy and unlawful cohabitation. On November 3, 1884, young Clawson received his sentence. What passed between judge and convict on that day brought into sharp focus the conflicting attitudes toward civil disobedience. When asked to show cause why judgment should not be pronounced, the prisoner simply stated: I very much regret that the laws of my country should come in contact with the laws of God, but whenever they do I shall invariably choose the latter. If I did not so express myself I should feel unworthy of the cause I r e p r e s e n t . . . . The law of 1862 and the Edmunds Law were expressly designed to operate against marriage as practiced and believed in by the Latter-day Saints. They are therefore unconstitutional, and of course cannot command the respect that a constitutional law would. That is all I have to say, your honor. 26

The judge seemed surprised and, leaning back in his chair, meditated for more than a minute before he replied. He denied that the Constitution protected the practice of polygamy and declared, While all men have a right to worship God according to the dictates of their own conscience, and to entertain any religious belief that their conscience and judgment might reasonably dictate, they have not the right to engage in a practice which the American people, through the laws of their country, declare to be unlawful and injurious to society.27

The judge would have been more lenient, he said, if Clawson had not openly declared that he believed it right to violate the law. The resulting sentence was three and a half years in prison and a $500 fine for polygamy, plus another six months and $300 for unlawful cohabitation. So Rudger Clawson marched off to prison, one of many heroes among the Saints because, like Paul of old, he was incarcerated for conscience' sake. Three years later, in an effort to lessen the friction between the federal government and the Mormons, Grover Cleveland issued pardons to several polygamists in the penitentiary. Rudger Clawson, whose mother had gone to the nation's capital to plead in his behalf, was among them. He was released on December 12, 1887, having served just 20 27

Ibid., 3:318; Deseret News, November 3, 1884. Ibid.

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over three years. Within two weeks he was made president of the Box Elder Stake, and ten years later, at the age of forty-one, he was sustained as a member of the Council of the Twelve Apostles. In 1921 he was named president of the Council of the Twelve and remained in that position until his death in 1943. He had won the unending respect of his people. In contrast to Rudger Clawson, John Sharp w7as ill and aging when his case arose in 1885. He was nearly sixtyfour, and his impressive life story made it impossible to predict that when confronted with a choice he would act differently from the hundreds of Saints who went to prison for conscience' sake. Rudger Clawson became a prisoner for conscience' sake. If most Mormon polygamists were disUSHS collection. senters from the law, Sharp became, in a mild but significant way, a dissenter from the dissenters. Converted to Mormonism in Scotland in 1846, Sharp soon migrated to America with his wife and two sons. In 1850 he organized his own pioneer company and crossed the Great Plains to Utah. He began his career in Utah as a common laborer and later helped to quarry and haul rock for the Salt Lake Temple. In 1856 he became bishop of the Salt Lake City Twentieth Ward and served in that capacity for twenty-nine years. He was involved in public construction projects and was an officer in the territorial militia. When Johnston's Army approached Utah, Brigham Young placed Bishop Sharp in charge of church effects for the purpose of transporting them south for safety. He was a Salt Lake City councilman, a leader in the People's party, an organizer of the Deseret Telegraph Company and the Deseret Irrigation and Navigation Canal Company, and a director of the Bank of Deseret. He also served as an assistant to Daniel H. Wells, church superintendent of public works, a position to which he was sustained at a general conference of the church. 28 28 Journal History of the Church, December 3 1 , 1850; November 3, 1856; April 20, April 25, October 25, 1857, Archives Division, Historical D e p a r t m e n t , C h u r c h of Jesus Christ of Latter-day Saints, Salt Lake City, hereinafter cited as L D S Archives. T h e Journal History is

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Through his many endeavors Bishop Sharp became one of Utah's most wealthy and influential men and was once dubbed the "railroad king of U t a h . " He was superintendent of the U t a h Central Railroad and joined with Brigham Young in obtaining the contract for building the Union Pacific line through Weber Canyon. He personally supervised much of the work, including the blasting of tunnels. When it came time to effect a settlement for work on the railroad, Brigham Young sent Sharp to Boston to meet with the directors of the Union Pacific. By early September 1869 he had obtained an "amicable settlement." He became vice-president of the Utah Southern Railroad and in December 1874 was elected a director of the Union Pacific Railroad, a position he held until his death in 1891.29 Sharp's economic success and public service were admirably matched by his religious convictions and his willingness to proclaim them publicly. A frequent speaker in the School of the Prophets, at Sabbath day services in Salt Lake City, and in general conferences, he often bore his testimony in the same tones as the most humble Mormon elder. O n April 6, 1871, for example, he addressed a general conference of the church, expressing deep gratitude for those who brought to him the Mormon plan of salvation. T h e gospel, he said, found him in a coal pit and brought him from darkness to light, and he took pleasure in bearing testimony that Joseph Smith was a prophet of God.30 It was not surprising that Bishop Sharp should have accepted the principle of plural marriage. He was married first in 1840, before he came in contact with Mormonism. By 1854, four years after his arrival in Utah, he had become convinced that plural marriage was a divine command, and he married a second wife. He took his third and last wife in 1861â&#x20AC;&#x201D;a year before the Anti-Bigamy Act w7as passed. Just before the passage of the Edmunds Act in 1882 he was interviewed by a newsman in Chicago. Describing his marriage relationships he said, I p l e d g e you m y h o n o r as a m a n t h a t in e a c h of t h e cases t h e r e was w h a t w e conceive t o be, n o t only a p r o p e r r e g a r d a n d love, b u t absolutely h a r m o n i o u s assent, from all parties interested. T h e s e t h r e e wives a r e replete with examples of Sharp's activities. See also Deseret News, April 8, 1865. Sharp's sermons sometimes demonstrated the same mixture of religious and practical concerns that characterized Brigham Young's. On February 19, 1865, for example, he preached on "temporal salvation" and advocated "among other important principles" the necessity of building canals for irrigation purposes, demonstrating the great benefits which would accrue to the Saints from a canal about to be constructed and advising all to take an active part. Journal History, February 19, 1865. 29 Deseret News, June 3, September 5, December 15, 1868; September 3, 1869; June 6, 1871; December 9, 1874, as well as many other entries in this period; Millennial Star 31 (1869) : 549, 647; Salt Lake Herald, December 10, 1874; Journal History, January 18, 1867; September 1, 1871. M Deseret News, April 7, 1871.

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all living. They have borne me thirteen children. I have as happy a home as any man on earth.

Sharp told the reporter that it would be impossible to legislate polygamy out of existence, and as if to portend the coming struggle he declared, It may be possible through legislation and terrorism to level our churches, disband our homes, and disperse our people. But you may be certain that as long as life lasts no Mormon will put his wife away from him nor will he give up his religious convictions.31

In an earlier interview with a New York World reporter, Sharp had expressed dismay over what the government might do with cases of plural marriage, whether contracted before or after 1862. "Their abrogation," he said, "would be an obvious injustice and would result in misery untold." But the Mormons were not excited yet, for "they do not believe that the Government will do them so gross an injustice. They cannot believe it."32 At that point it would probably have been even more difficult for John Sharp to believe that in a few short years he himself would make the agonizing decision to separate from his plural wives and conform to a law he believed would not be passed and could never be enforced. Nor could anyone foresee that Sharp would become the object of scorn among his own people for deciding to obey the constitutional law of the land. The storm began quietly enough in April 1885 when the venerable bishop was indicted for unlawful cohabitation and bound over for trial. In July he was arraigned and pleaded not guilty. By September 18 something had changed his mind. It may have been ill health, for he had been failing recently and was reportedly suffering severely from what the Tribune called "cancer trouble." When he appeared in court that day his head was bandaged. Age combined with his business concerns may have been another factor, for he had reportedly once told a friend that "in consideration of his age, wealth, and ambitions, he could not afford nor stand to have them blighted or paralyzed by suffering a term of imprisonment. He therefore would use every honorable means to avoid the punishment." Sharp's long term of devoted church service, however, argues against the idea that he would take such a course merely for the sake of wealth. He may have been genuinely persuaded that the law would finally prevail and that the only sensible thing to do was to obey it. In an interview in Omaha several weeks later he explained: 31

Interview reported in Salt Lake Daily Herald, M a r c h 26, 1882. *~ As reported in the Territorial Inquirer, J a n u a r y 7, 1882.

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I acted according to the dictates of my conscience, and just as in all wisdom I should have acted . . . . I do not renounce my religion or any part thereof. I simply give up the practice of polygamy, because the United States law forbids my indulging in it any longer. As long as I am a citizen of the United States I do not see how I can do otherwise.

Or, perhaps, as the Deseret News seemed to believe, he was simply tricked by the court.33 Whatever his reason, on September 18 Bishop Sharp and his attorney walked into Judge Zane's court and changed his plea to guilty. The ailing bishop's lawyer then read a short but important statement, prepared by Sharp himself, explaining his position: "I hold myself amenable to the laws of my country, and in whatever degree I may have infringed upon the provisions thereof, am ready to meet the penalty." He explained, in words as loyal to the principle of plural marriage as those of any other Mormon stalwart, that he had entered polygamy in good faith, believing it to be the law of God, and that the Edmunds Act was a harsh law. Nevertheless, he had arranged his family relations to conform with the requirements of the law (meaning that he had arranged for separate maintenance for his wives) and that he was now living in harmony with the provisions against cohabitation. "It is my intention to do so," he said, "until an overruling Providence shall decree greater religious toleration in the land." He was then questioned briefly by the judge and promised that henceforth he would obey the law of the land as interpreted by the courts.34 To Judge Zane this was one of the choice opportunities he had been waiting for. Several months earlier another prominent Mormon, Orson P. Arnold, had become the first to take the same step, and the judge had fined him $300 but had not imposed a prison sentence.35 Others followed, and all were criticized by their brethren. Bishop Sharp, however, was the most prominent of them all, and his example, Zane reasoned, would help to persuade others to do the same. It "will have a more beneficial effect on society than any imprisonment would have," he said and imposed a $300 fine but no prison sentence. The Saints in Salt Lake City were, for the most part, shocked and dismayed at the action of Bishop Sharp and, like a sudden thunderstorm, their words of disapproval descended upon him in torrents. Sharp visited the office of the Deseret News to ask for a merciful tone in the report of 33 Deseret News, April 14, July 20, 1885; Salt Lake Tribune, September 19, November 7, 1885 ; Deseret News, September 21, 1885. 31 Deseret News, September 19, 1885; Salt Lake Tribune, September 19, 1885.

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John Nicholson, acting editor of the Deseret News, criticized John Sharf. and followed Clawson to prison. USHS collections.

his case, but his own ward member, John Nicholson, acting editor who would soon go to prison himself for polygamy, considered him a mere compromiser trying to maintain his influence among railroad men.36 The first editorial on the subject declared that Sharp had missed the "one opportunity of his life" to sustain a principle he believed to be divine, criticized him severely for agreeing to obey the law according to the interpretion of the court, and held that in spite of his precarious health and the fact that "incarceration in prison might have proved disastrous, if not fatal, to him," he was totally wrong to acquiesce.

No matter how dark the clouds that are now apparently frowning upon the people of God, the good ship Zion will weather the storm. It may rage for a season, after which the turbulent waters will subside. Meanwhile there must be, of what God has given to the Saints, no surrender. 37

This was only the beginning. Brigham Young, Jr., reflecting the sentiment of many churchmen, recorded in his diary: "To my understanding he rejected in total the doctrine of celestial marriage." 38 The Ogden Daily Herald declared that Sharp had lost the grand opportunity of his lifetime.39 Heber J. Grant refused to comment on Sharp's action publicly, but he wrote to Joseph F. Smith, "Regarding Bishop Sharp and others I must say that I cannot find words to express my regrets at their action."40 Smith, in turn, wrote to George Q. Cannon from Hawaii, I am truly sorry for br. John Sharp . . . . I can see no way for him but repentance, and a full acknowledgement of his error and a full return 35

Whitney, History of Utah, 3 : 3 5 7 - 5 9 . As reported by George Cannon Lambert, "Journal of George C a n n o n Lambert," in K a t e B. Carter, ed., Heart Throbs of the West, 12 vols. (Salt Lake City: Daughters of U t a h Pioneers, 1 9 3 9 - 5 1 ) , 9 : 3 6 4 . 37 Deseret News, September 19, 1885. 38 Brigham Young, Jr., Journal, September 19, 1885, L D S Archives. 89 September, 2 1 , 1885. 10 Salt Lake Tribune, September 19, 1885; Grant to Smith, November 6, 1885, Heber J. Grant Letterbooks, L D S Archives. 36

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to the responsibilities devolved upon him by reason of the covenants he has made. This would no doubt be hard to do, perhaps impossible for him now, but it would be to me a thousand times preferable to the "humble pie" upon which he now feeds . . . . Truly the material of which martyrs were made in olden times has become very scarce in these latter days in the civilized world. 41

By September 1885, then, the conflict over civil disobedience in Utah had brought forth a full cast of strong characters: Judge Zane who believed in and was zealously trying to enforce the law, Rudger Clawson and most church leaders who openly advocated civil disobedience for conscience' sake, and John Sharp who despised the law as much as did his brethren but considered it the better part of valor to acquiesce and obey it. The man sworn to enforce the law, the dissenters from the law, and the dissenter from the dissenters were all men of honor and integrity, yet their respective positions w7ere seemingly irreconcilable. In dissenting from the dissenters, Sharp found his church position affected. Presiding Bishop William B. Preston, one of the few church leaders who openly defended Sharp's right to do what he did, thought his action would have no effect. "The duties of a bishop in our church in the abstract," he explained to a Tribune reporter, "pertain entirely to temporal affairs and have nothing to do with the teaching of doctrines. That being the case, I do not see why he cannot consistently continue to hold this office."42 Sharp's own stake leaders felt otherwise. His immediate superior, Salt Lake Stake President Angus M. Cannon, was even then serving time in the penitentiary for the very offense for which Sharp escaped imprisonment. Cannon had sought to conform to the spirit of the law, as he understood it, by providing separate apartments for his plural wives and by not actually living with them in a connubial sense. He visited them in the daytime, sometimes ate meals with them, but scrupulously refrained from normal husband-wife relationships. This, he believed, would save him from being convicted of unlawful cohabitation. Judge Zane thought differently, and Cannon was convicted and sentenced on May 9, 1885, to the usual six months in prison and $300 fine. Cannon appealed to the United States Supreme Court on the grounds that unlawful cohabitation had been wrongly defined by Judge Zane, but the Supreme Court upheld the Utah judge. Cannon was released from prison on December 14, 1885, and immediately went into hiding to avoid a threatened rearrest on similar charges. 43 41

Smith to Cannon, November 12, 1885, Joseph F. Smith Letterbooks, LDS Archives. Salt Lake Tribune, September 19, 1885. 43 See the discussion of this case in Whitney, History of Utah, 3:334-39, 357-58, 363-72, 42

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Sharp's stake leaders could hardly be expected to show much leniency under the circumstances. Indeed, they were still preaching that plural marriage was essential to salvation and were intensely critical of those who would bend in the least degree. In May, before he went to prison, Angus Cannon had stated in a stake conference that "when a man professing to be a Latter-day Saint will cower before our enemies and beg for mercy, forgetting or renouncing the promises of God, he considered him a contemptible hypocrite." In a stake priesthood meeting in October a speaker declared from the pulpit that no faithful man would submit even though prison stared him in the face and that any priesthood holder who failed to sustain the law of God (that is, polygamy) forfeited his right to rule in the midst of his people.44 Five days after his court appearance, Bishop Sharp was called in by Joseph E. Taylor, acting president of the Salt Lake Stake. The bishop, 3 8 8 - 8 9 , 3 9 2 - 9 4 . See the Supreme Court decision in 116 U.S. 55. C a n n o n actually spent an extra two months, voluntarily, in prison in order to have his appeal tested in the Supreme Court. 44 Salt Lake Stake, "Historical Record, 1880-1890," M a y 1, 1885, p p . 4 2 2 - 3 3 ; October 3, 1885, p . 457, L D S Archives. It was even being preached in the stake that people must be firm believers in plural marriage before they could obtain recommends to participate in the M o r m o n temple ceremonies. In one instance a man went to the Logan T e m p l e wanting to have a dead woman sealed to him. H e was denied the privilege because he had only one wife even though he h a d h a d ample opportunity to obtain another. A bishop from the Salt L a k e Stake who was a polygamist was allowed to have the dead woman sealed to him. Ibid., p p . 4 7 0 - 7 1 .

In front of the John Sharp home at 439 East [South Temple are a man who appears to be Sharp and four women. USHS collections, courtesy LDS church.

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along with his son James, talked with Taylor for nearly two hours. Earlier, Taylor had requested in writing that Sharp cease functioning as a bishop until the matter w7as settled, and in this interview he asked Sharp to resign. Sharp refused, and that night Taylor reported at length to the high council, suggesting that Sharp be called in to justify himself. The council agreed.45 On September 29 the council again discussed Bishop Sharp's intransigence; although a variety of feelings w7ere expressed only one man actually defended Sharp's position. John H. Rumel did not believe it right to teach people to disobey the law of the land; if the Mormons were better than the Gentiles they ought to observe the law more strictly. "There is a question in my mind," he said, "whether I want to be an accessory to urge people to break the law however unconstitutional it might be." 46 The council voted to summon Bishop Sharp on the evening of October. 1. It was a long night. Taylor reviewed in detail his conversation with John and James Sharp on September 23. Bishop Sharp then spoke from what must have been a deeply emotional and difficult position for him, attempting to counteract the barrage of accusations directed toward him. His intentions had been publicly misjudged, and one can imagine his anguish as he tried to set the record straight and bear his testimony to those who were his spiritual judges. His son James must have suffered, too, as he watched and listened to his father, whose head was bandaged and who was suffering severe physical as well as emotional pain. It was Bishop Sharp's message that he still had faith in his religion and that nothingâ&#x20AC;&#x201D;not even the criticism of his close associatesâ&#x20AC;&#x201D;could take that away. I would like to know what I have renounced before that Court. I do not think I have renounced anything in my religion; not any whatever; not one principle of the Gospel. I have not renounced my belief and faith, nor family; neither the divinity of the revelations of God as given to his people on earth through the Prophet Joseph Smith; I have not renounced any of my wives, nor my children; I have held on to e v e r y t h i n g . . . . I am passing between the u p and nether mill-stone, but I can't be thrashed into apostacy. I am going through the mill and getting pretty well ground up. There may not be much left of me but what there is will to real good stuff.

Sharp had his son read the account of w7hat happened in the courtroom, then continued with his own defense. "It may be that I will be 45 Salt Lake Stake High Council Minutes, 1882-1887, September 23, and October 1, 1885, pp. 652, 657-65, LDS Archives. 46 Ibid., September 29, 1885, pp. 656-57.

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ground close in the house of my friends," he said. "That is something more than the trial of the Court to me, but I have felt to take the advice of the Divine Master which is not to revile back again. The trip hammer w7ill not hurt me brethren." 17 The council's discussion then turned to whether John Sharp should resign as bishop. Sharp saw no reason to resign, for in his mind he had done nothing to deny the faith. Taylor, on the other hand, contrasted Sharp's action with that of Bishop Hiram B. Clawson who had refused to do as Sharp had done, that it, "promise to Hiram B. Clawson joined his son live within the law as construed by the Rudger in prison. USHS collections. courts." As a result, Clawson and his wives and family had been insulted in open court. Furthermore, Taylor reminded the council, "The President of this Stake, Bro. Angus M. Cannon, is now suffering imprisonment for doing exactly the opposite to that which the Bishop has done." In Taylor's view, once Sharp had given his pledge to counsel others to obey the law he could not properly serve in the capacity of a bishop, for he must counsel people against what the church considered right. Finally, Taylor argued that since marriage was for the purpose of procreation, Sharp may have been justified in foregoing marital relations since his wives were past childbearing but that men with wives who could still bear children would be violating a sacred obligation if they did likewise. Furthermore, Taylor wondered if a man with physical vitality did not have an obligation "to take another wife, and thus continue this labor." "That is between me and my God," Sharp replied, whereupon Taylor reminded him of a revelation recently received by John Taylor that included the words, "For it is not meet that men who will not abide my law shall preside over My priesthood." Although this revelation was concerned particularly with the organization of the priesthood and not with polygamy, Joseph Taylor used the statement to good advantage. 48 He then announced that John Sharp had rendered 47

Ibid., October 1, 1885, pp. 658-59. This "revelation," not officially presented as such to the body of the church, was received by John Taylor on October 18, 1882, and is recorded in the L. John Nuttall papers, Lee 48

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himself ineligible to retain his office as bishop of the Twentieth Ward. A vote was taken, and ten members of the council voted to sustain the decision while three, John Rumel, Hosea Stout, and John T. Caine, abstained. Sharp asked to have the matter referred to the First Presidencyâ&#x20AC;&#x201D;which the council agreed to doâ&#x20AC;&#x201D;and assured them that by his means, faith, and prayers he would sustain any man who took his place. A transcript of John Sharp's hearing was sent to the First Presidency, and on October 17 George Q. Cannon replied.49 Two months prior to his court appearance Sharp had submitted a statement to Cannon. The ideas in that statement and the one given to the public at the time of the trial, Sharp had told the council, agreed. Wrhen Cannon read Sharp's assertion in the minutes of the high council he was disturbed, for the two statements differed so much that if the one presented to him had been read in court Cannon would have seen no reason for Sharp to resign his bishopric. "I would like to make it [the statement submitted by Cannon] a part of your Minutes," Cannon wrote. "Then if in years to come your Minutes should be referred to for historical purposes, no further explanation will be needed." 50 On reading this the historian cannot help but get the awesome feeling that Cannon was speaking to him, knowing that the whole affair would come up for scrutiny in the future and wanting to make certain that his own side would be presented fairly. Seldom do historians get such firm instruction from the past. The two statements contained much similar wordingâ&#x20AC;&#x201D;recognition that Sharp had more than one wife and criticism of the law that interfered with freedom of religious practice. However, several differences seemed especially significant to the bishop's superiors in that they demonstrated that Sharp no longer accepted the church leaders' interpretation of constitutional law. In the first statement Sharp declared that in embracing plural marriage he did not intentionally place himself in conflict with the laws of his adopted country. "I believed most unfeignedly that I was experiencing the constitutional liberty of worshipping my creator according to the dictates of my own conscience and the word of God; that I was living above and not in violation of the law of the land." The idea that by living above the law one was not really in violation of it was consistent with the statements John Taylor and others had been Library, Brigham Young University, Provo. It is in Nuttall's handwriting in a folder marked "Doctrine." 49 Only two members of the First Presidency, John Taylor and George Q. Cannon, were available. Joseph F. Smith was in Hawaii. 30 Salt Lake Stake High Council Minutes, 1882-1887, October 20, 1885, pp. 686-87. Sharp's original statement is designated "A Position Defined."

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uttering for years. That idea did not appear in the public statement issued two months later. In the original statement, Sharp commented on his efforts to abide by the law, unjust though it may have been, but in words much less committed to support of the law than those he wrote later. The first statement read: I have ever since adverse legislation to my social a n d religious liberties b e c a m e law endeavored to place myself in obedient relation to that law, so far as it was possible for me to do, and not dishonor and debase m y m a n h o o d by discarding my wives a n d my children . . . . This I c a n n o t do. A n d if the extent to which I a m able to obey the law will not satisfy its d e m a n d s , I must submit to the imposition of its penalties until an over ruling providence will have ordained a n d established greater religious toleration.

The second statement expressed equal resentment against the law but added this significant qualification: But I have so arranged my family relations as to conform to the requirem e n t s of the law, a n d I a m now living in h a r m o n y with its provisions in relation to cohabitation, as construed by this court and the S u p r e m e C o u r t of the Territory, and it is my intention to do so in the future until a n overruling Providence shall decree greater religious toleration i n the land. 5 1

It was this intent to conform to the law in the future, as well as his promise to advise others to do the same, that made John Sharp a dissenter and, for the time being at least, almost an exile in his own society. L. John Nuttall, secretary to the First Presidency, wrote to his son from the underground that when Sharp was "induced" to do as he did, it was thought that "the whole people" would follow his example. But, he assured his son, "those who have taken pains to escape punishment have lost the confidence of their brethren and sisters and are miserable in their feelings. Their sufferings are incomparably worse than the sufferings of those who have gone to the Penitentiary." 52 How much anguish Sharp suffered is not known, but in an interview with an Omaha newsman early in November he reported that his actions had gained for him the enmity of the elders of the church and of lifelong friends. "I am now comparatively ostracized," he said. On November 3, 1885, the First Presidency offically sustained the action of the Salt Lake Stake in requiring John Sharp to resign as bishop.53 81

Italics added. L. John Nuttall to Leonard J. Nuttall, October 26, 1885, L. John Nuttall Letterbooks, Lee Library. 53 Salt Lake Tribune, November 7, 1885; Salt Lake Stake High Council Minutes, 18821887, November 10, 1885, p. 709. 82

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Though Sharp was the most well known, others followed his example and received similar treatment. The first was Orson P. Arnold. Later, however, he broke his promise to obey the law by visiting his plural wife, and on October 21, 1885, he was fined $450 and sentenced to fifteen months in prison. Thus, said Orson F. Whitney, he "redeemed himself in the eyes of his people." 54 John Daynes followed Sharp's course exactly, and for that w7as called by the Deseret News an "abject spectacle of recantation" Truman O. Angell, Jr. followed John and guilty of "moral cowardice." Sharp's example. Later, he left the "One can only turn from such LDS church. USHS collections. scene," the News reported, "with unutterable loathing and disgust."55 Septimus W. Sears, a member of Bishop Sharp's ward, followed Sharp's example on September 29 and at the same time resigned his position as assistant superintendent of church-owned ZCMI, choosing, the church paper said, "Liberty and Dishonor." 56 John H. Rumel, the only member of the Salt Lake Stake High Council to express support for Sharp, took the same course on November 30.57 Truman O. Angell, Jr., assistant church architect, made the same decision on the same day as Septimus Sears. The News contrasted Angell with Hiram B. Clawson, who had gone to prison that day: I t is with sadness t h a t one turns from the nobel a n d m a n l y p i c t u r e presented by the c o n d u c t of Brother Clawson to its reverse, as exhibited in the craven course of T . O . Angell, J r . It is a transformation from sunshine to gloom, from the heroic to t h e contemptible. H a d t h e g e n t l e m a n climbed to any height in t h e walks of religion a n d other d e p a r t m e n t s of life, h e m i g h t have been designated as a fallen angel. As it is h e p r o b a b l y b u t carries out the highest idea he has of greatness, a n d m a y not be open to censure as severe as would be t h e just due of minds of greater advance54

Whitney, History of Utah, 3 :358-59, 518. Deseret News, October 1, 1885. M Salt Lake Herald, October 1, 1885; Deseret News, September 29, 1885. 57 Deseret News, November 30, 1886. 53

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ment. It does not appear that Mr. Angell can possess anything like a correct conception of the grandeur of being consistent. Let him pass.58

With several of its own editors in prison or about to go there, the News became adept at literary lashing of those who, it believed, were undermining a sacred cause. But in Angell's case even the president of the church felt compelled to issue a rebuke. He wrote: This is not the time for Latter-day Saints to speak in uncertain tones, nor appear to be yielding to the demands of the wicked. If men have faith in the principles of the Gospel and are determined to maintain them, they have an excellent opportunity when brought before courts and in the presence of their persecutors to exhibit it. It must be said concerning yourself that you failed to do this. Your language and conduct had the appearance of surrendering a principle of the Gospel and repudiating a portion of your family.59

Angell was dropped from the list of church architects and within four years had left the church.60 In 1885 Claudius V. Spencer abandoned polygamy and was dropped as a home missionary in Salt Lake Stake.61 The sequel to the ostracism of Bishop Sharp may seem surprising, but in view of his earlier closeness to church leaders and his lack of public indignation at his release as bishop it might also be expected. Although he never went back on his decision, in a short time he seemed to return to the good graces of almost everyone. In February 1886 when George Q. Cannon was arrested in Nevada he was returned to Utah in John Sharp's personal railroad car, which had been especially sent for him. When Judge Zane set Cannon's bail at $25,000 it was John Sharp, along with Feramorz Little, who posted the necessary bonds. Cannon, under the advice of John Taylor, decided that it was not yet time for him to go to prison, and John Sharp lost his money.62 Sharp was on amicable terms with John Taylor, too, for he sent him free railroad passes while he was on the underground and even received a friendly letter from the church president asking for passes for other men who were performing important church duties.' 5 In January 1888 Wilford Woodruff, who had become the leader of the church, wrote to John Sharp who was in the eastern states, asking him to use influence to obtain fair treatment 58

Deseret News, September 29, 1885. Taylor to Angell, October 16, 1885, First Presidency Letterbooks, L D S Archives. "Â°Salt Lake Stake, "Historical Record, 1 8 8 0 - 1 8 9 0 , " p. 4 6 2 : Deseret News, November 2,

1889. ^ S a l t Lake Stake, "Historical Record, 1 8 8 0 - 1 8 9 0 , " May 3, 1885, p. 4 2 9 : Deseret News, M a y .1.3, 1 8 8 5 ; Salt Lake Democrat, M a y 4, 1885. ^ L a r s o n , Americanization of Utah, p p . 149, 150-51. Later, C a n n o n succeeded in getting the forfeited bonds returned. ti;! Taylor a n d C a n n o n to Sharp, December 30, 1886; Taylor to Sharp, J a n u a r y 13, 1887, First Presidency Letterbooks.

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for the Saints in the national press.64 Ironically, to the degree that Sharp succeeded in creating friendly feeling for the Saints, he helped pave the way for the Manifesto announcing discontinuance of plural marriage. After the first few months of Sharp's so-called surrender nothing in the record suggests that he w7as any longer out of favor with church leaders or that he was being punished. On May 15, 1888, he accompanied several general authorities to the dedication of the Manti Temple. When he died on December 23, 1891, he was praised by Saint and Gentile alike; over two thousand people filed past his coffin as he lay in state in his home. Strangely symbolic of the new rapport between the various elements in Utah that Sharp's action had foreshadowed and the Manifesto of 1890 had brought about was the list of people who attended the funeral. They included prominent churchmen such as George Q. Cannon, Angus Cannon, and William B. Preston; business men such as S. W. Eccles and the directors of the Deseret Bank and of Z C M I ; and the judge who precipitated events, Charles S. Zane. 65 The problem of civil disobedience in nineteenth-century Utah clearly involved public ethics. This study has not attempted to define any position on the law as right or w7rong in absolute moral terms. Rather, it has tried to suggest that public morality is as much a matter of conscience as it is of conformity to any particular viewpoint. In the heat of battle each side aligns its forces and fights for what it considers right with every means at its disposalâ&#x20AC;&#x201D;political, religious, or verbalâ&#x20AC;&#x201D;and in the process bitter judgments are made and unhappy consequences inevitably result. The historian comes away from such conflicts with at least some degree of respect for every side and with little disposition to judge any in terms of absolutes. Certainly John Taylor, George Q. Cannon, and Rudger Clawson must be respected and are worthy of being revered by church members for their dissent and civil disobedience under a law that to them was reprehensible and evil. Even though Judge Charles S. Zane made some unfortunate judicial errors, he, too, can hardly be faulted on moral grounds for his efforts to quell dissent and to require conformity to the constitutional law7 of the land. And who can fault John Sharp, a dissenter from the dissenters, for following his conscience down the middle road by upholding with his testimony the law of God but conforming his actions to the law of man which his citizenship compelled him to obey? 61 Woodruff to Sharp a n d L e G r a n d Young, J a n u a r y 17, 1888, Wilford Woodruff Letterbooks, L D S Archives. ^ Salt Lake Tribune, December 28, 1891. See also, Salt Lake Tribune, D e c e m b e r 24, 1 8 9 1 ; Deseret News, December 23, 1891.

Utah's Experience with the Desert Land Act BY S T E P H E N W . STATHIS

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Arid sagebrush plain in Box Elder USHS collections.

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/ V N X I O U S L Y AWAITING PRESIDENT U L Y S S E S S. G R A N T ' S arrival in U t a h on the first Sunday in October 1875, the Deseret Evening News lauded his decision to cross the Rocky Mountains and become the first American president to visit the Mormon capital. How could he better understand and appreciate the "peculiarities" of the territory, the newspaper asked, than by a personal visit. Considering the widespread national interest in Utah, the president's gesture was looked upon by the News as both commendable and wise. T h e Salt Lake Tribune viewed the significance of the chief executive's stay in an entirely different light, considering the unofficial visit an opportune time for the president to see firsthand the atrocities of the Mormon majority that controlled everything in the territory, including appointments and the courts. 1 Mr. Stathis is an analyst in American history, Congressional Research Service, Library of Congress. He expresses appreciation to his colleague Thomas H. Neale for his generous comments and insight. 1 Deseret Evening $ews, October 2, 1875; Salt Lake Tribune, October 2, 1875.

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By the time Grant left Utah late on the afternoon of Monday, October 4, 1875, he had met at least briefly with most of Utah's leading citizens, including Brigham Y^oung. At the outset of the presidential party's visit, its trainâ&#x20AC;&#x201D;gaily decked out with flags and streamersâ&#x20AC;&#x201D;was greeted at Echo in Weber Canyon by the newly appointed governor, George M. Emery, and a number of other federal officials. Grant was then saluted by an enthusiastic throng in Ogden, cheered by thousands in Salt Lake including the city's Sabbath School children, and feted as the guest of honor at a public reception at the Walker House, Salt Lake's finest hotel. He also found time to tour the recently completed tabernacle, inspect the foundations of the temple, and visit several other points of interest. From all outward appearances, Grant and his party thoroughly enjoyed themselves and were pleased with their reception in the territory. There is even a story told of President Grant turning to Governor Emery after his carriage had passed the multitude of Sunday School children who welcomed him on his arrival in Salt Lake and asking, "Whose children are these?" When he was told they were "Mormon children," the president was silent for several moments and "then murmured in a meditative tone, T have been deceived.' " 2 Two months after completing his western tour, however, Grant sent to the Congress his seventh annual message which contained several uncomplimentary remarks regarding the Mormons. He reminded Congress, as he had in nearly every annual message, of the "anomalous, not to say scandalous, condition of affairs existing in the territory of Utah, and . . . asked for definite legislation to correct it." He considered it preposterous that "polygamy should exist in a free, enlightened, and Christian country, without the power to punish so flagrant a crime against decency and morality." Despite this concern, Grant in later passages directed his attention toward specific legislative proposals that, if enacted, would possibly benefit many of those same Mormons. The president's visit to the territories of Wyoming, Utah, and Colorado had convinced him "that existing laws regulating the disposition of public lands, timber, etc., and probably the mining laws themselves are very defective and should be 2 Orson F. Whitney, History of Utah, 4 vols. (Salt Lake City, 1893), 2 : 7 7 8 - 7 9 . See also T h o m a s G. Alexander, "A Conflict of Perceptions: Ulysses S. G r a n t and the M o r m o n s , " Ulysses S. Grant Association Newsletter 8 (July 1 9 7 1 ) : 3 8 - 3 9 ; Deseret Evening News, October 4, 5, 1875; J o h n Y. Simon, ed., The Personal Memoirs of Julia Dent Grant (New Y o r k : G. P. P u t n a m ' s Sons, 1975), p p . 1 8 4 - 8 5 ; Salt Lake Tribune, O c t o b e r 5, 1875; E d w a r d W. Tullidge, The History of Salt Lake City and Its Founders (Salt Lake City, 1886), p p . 6 2 0 - 2 3 ; Wilford Woodruff Diary, October 3, 4, 1875, Wilford Woodruff Collection, Archives Division, Historical D e p a r t m e n t , Church of Jesus Christ of Latter-day Saints, Salt Lake City.

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carefully amended, and at an early date." He was especially concerned about those areas "where cultivation of the soil can only be followed by irrigation, and where irrigation is not practicable, the lands can only be used as pasturage, and this only where stock can reach water (to quench its thirst)." It was obvious, he felt, that the same laws could not apply to these areas as applied to "lands every acre of which is an independent estate by itself." Also, "land must be held in larger quantities to justify the expense of conducting water upon it to make it fruitful, or to justify utilizing it as pasturage." Although Grant did not feel that his observations while traveling in the territories were sufficient to justify the recommendation of specific legislation, he did suggest the creation of a special congressional committee to visit the West and advise what to do.3 Grant's specific proposals were never carried out, but they were among the contributing factors leading to the passage of the Desert Land Act of March 3, 1877. The president's observations were supplemented by the subsequent recommendations of Zachariah Chandler, his secretary 3 James D . Richardson, A Compilation vols. (New York, 1 8 9 7 - 1 9 1 1 ) , 9 : 4 3 0 9 - 1 0 .

of the Messages

and Papers of the Presidents,

Ulysses S. Grant and party near Laramie, Wyoming, on the Union Pacific line, 1868. Grant, in straw hat, is standing in front of post with birdcage on it. USHS collections.

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of the interior, and those of Samuel S. Burdett and James A. Williamson, successive commissioners of the General Land Office, and by substantial popular support in the West.4 The Desert Land Act enabled settlers in three western states and eight territories, including Utah, to take in a reasonably compact form 640 acres of desert land that would not, without irrigation, produce agricultural crops. Those who accepted the challenge of taming the sagebrush were required: (1) to be citizens or to have declared their intentions to become naturalized, (2) to make a payment of 25 cents per acre at the district land office at the time of filing, (3) to show proof of reclamation by irrigating the 640 acres within three years, and (4) to pay a balance of a dollar an acre when proof of reclamation had been shown.5 An especially attractive feature of the legislation for Utahns was that they were for the first time able to acquire title to public lands without having them surveyed in accordance with federal law and General Land Office regulations. Before, the surveys had formed a crucial link in land acquisition. The survey requirement, coupled with the nature of land laws designed for a world other than the Mountain West, as Thomas G. Alexander has shown, "served as a basis for a conflict over land legislation which raged throughout the nineteenth century and which has continued to the present time." Between 1855 and 1857 more than two million acres of public land was surveyed in Utah, but "only the need to allow selections of land by the railroad overcame prejudice against Mormons and finally forced the opening" of a federal district land office in Salt Lake City in 1869.6 Even then, it was a slow process for Mormons to secure a valid title to the lands they had some twenty years earlier reclaimed from the desert. The land monopoly many predicted would accompany passage of the Desert Land Act never materialized. "Though tenantry, for instance, 4 U.S., Congress, House, Report of the Secretary of the Interior, 1876, House Executive D o c u m e n t no. 1, pt. 5, 44th Cong., 2d sess., 1876, p. xi, serial no. 1749; Annual Report of the Commissioner of the General Land Office for the Fiscal Year Ending June 30, 1875 (Washington, D.C, 1875), 6 - 9 ; Annual Report of the Commissioner of the General Land Office for the Fiscal Year Ending June 30, 1876, (Washington, D . C , 1876), p p . 4 - 7 . T h e most comprehensive examination of the legislative history of the Desert Land Act is found in Harold H . D u n h a m , Government Handout: A Study in the Administration of the Public Lands, 1875â&#x20AC;&#x201D;1891 (New York: D a Capo Press, 1970), p p . 2 9 - 3 3 . 5 19 U.S., Statutes at Large, 377'. I m p o r t a n t discussions of the act are found in book-length studies of the public domain a r e : Paul W. Gates and Robert W. Swenson, History of Public Land Law Development (Washington, D . C : Government Printing Office, 1968), p p . 6 3 8 - 4 3 ; Benjamin H . Hibbard, A History of Public Land Policies (Madison and Milwaukee: University of Wisconsin Press, 1965), p p . 424-34, 4 5 2 - 5 3 ; E. Louise Peffer, The Closing of the Public Domain; Disposal and Reservation Policies, 1900-50 (Stanford, Calif.: Stanford University Press, 1951), p p . 13-14, 18-19, 25, 5 0 - 5 3 ; Roy M . Robbins, Our Landed Heritage: The Public Domain, 1776-1936 (Princeton, N . J . : Princeton University Press, 1942), p p . 2 1 9 - 2 0 , 2 4 9 - 5 1 . 6 T h o m a s G. Alexander, A Clash of Interests: Interior Department and Mountain West, 1863-96 (Provo, U t . : Brigham Y o u n g University Press, 1977), p. 27.

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increased in other areas during the late nineteenth century, in the Rocky Mountain territories it showed little growth." By making "it possible to secure land titles before survey," Congress in essence circumvented the "easterners and midwesterners who opposed appropriations for Western land surveys. Because actual settlement was no longer required, groups of settlers and companies could build irrigation works while they remained in other areas until the projects were completed and water was available." 7 Considerable initial excitement in Utah followed the law's enactment, Gov. George W. Emery welcomed but fulfillment of its provisions were, President Grant to Utah in 1875. as the Deseret News suggested soon USHS collections. after its passage, considered by many to be virtually impossible. Even more important was the fact that smaller sections of the same lands were still subject to preemption and homestead laws and could be obtained under those acts without fulfilling any irrigation requirements. As early as the first week of May 1877 the News was questioning the need for the new7 law. It was "rather loosely put together" and appeared to be advantageous only to capitalists and speculators. Given these realities, the News suggested that the law be repealed during the next session of the Congress "or at least modified so as to be more definite in its provisions and more likely to benefit the hardy pioneer families seeking homes, than capitalists and speculators." 8 Such criticism was neither unique nor isolated. Almost before the ink of Grant's signature had dried, Commissioner Williamson recommended its early repeal and proposed as a substitute the "enactment of a law giving to persons or corporations all lands which are truly and unmistakably desert in character, which they may thoroughly and fully reclaim by means of irrigation." Why, Williamson asked, "if lands which required no irrigation are given away to any persons who will settle upon and improve them," cannot the government "give away the desert 7 8

Ibid., p. 80. Deseret Evening News, April 8, May 2, 1877.

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lands upon the same conditions, especially when it requires so much more to improve them?" 9 Secretary of the Interior Carl Schurz also considered the law seriously flawed as did Grant's successor, Rutherford B. Hayes. In 1883 Thomas Donaldson in a monumental report on the public domain, which he prepared for the Public Land Commission created by Congress four years earlier, concluded that the act had "become an aid to landgrabbing. It should be repealed or a larger area given under it. It is useless for actual settlement, for poor men cannot irrigate it by means of expensive ditches and men of means could not afford to construct ditches for so small an area."10 Testimony received by the Public Land Commission in Salt Lake likewise emphasized the urgent need for modification in the law. George Stringfellow, a Salt Laker interested in the canals south of the city, told the commission in September 1879 that the Desert Land Act was a very good law but that 640 acres was too large to be reclaimed within three years. He had "labored faithfully, with a great many others" in the Salt Lake Valley in various irrigation projects and was now convinced that they could not irrigate the land within three years. Their projects had taken considerably more time and money than they originally planned on, and if a time extension was not passed by Congress they stood to lose the $50,000 to $75,000 they had already invested. He concluded by deploring the possibility that he and his colleagues would "be deprived of both the land and money because we cannot get the ditches done in time." Charles W. Stayner, a Salt Lake attorney, suggested to the commission that the act "should be modified so as to provide that when parties have expended a certain amount of means or labor in turning streams of water from their natural channels, in order to reclaim a tract" and have not within three years "thoroughly accomplished the reclamation of the land as required, they may, on proper showing and proof before the local officials, obtain an extension of time to complete their work." T. C. Bailey, chief clerk in the Surveyor General's Office, Salt Lake, provided sympathetic agreement on December 8, 1879, to s ' Annual Report of the Commissioner of the General Land Office for the General Office for the Fiscal Year Ending June 30, 1877 (Washington, D . C , 1877), p. 34. 10 Thomas Donaldson, The Public Demain: Its D.C, 1884). See also, U.S., Congress, House, Report House Executive Document no. 1, pt. 5, 45th Cong., Richardson, Messages and Papers of the Presidents, (August 1881) : 204-13.

Land

History with Statistics . . . (Washington, of the Secretary of the Interior, 1877, 2d sess., 1877, p . xxii, serial no. 1800; 9 : 4 4 2 8 ; North American Review 138

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Stayner's view that under certain conditions desert claimants should be granted time extensions.11 Yet, even the advice of the most competent authority of the day, Maj. John Wesley Powell, to the effect that desert holdings should at the minimum be 2,560 acres, received little attention in Congress.12 These suggestions and similar recommendations by the Public Land Commission and the commissioner of public lands were destined to be useful only as footnotes in later studies of the public domain. Instead, the government began to focus on the numerous frauds that were undermining the entire American land system. In response to Commissioner Noah C. McFarland's request, Congress on March 3, 1883, approved legislation providing $100,000 for the investigation of illegal and fraudulent entries under the various land acts.13 Examinations by special agents, McFarland announced late in 1884, revealed numerous intstances where no attempt whatsoever had been made to irrigate lands entered under the Desert Land Act. Entries were being made on lands that were not desert in character; reclamation of otherwise uncultivable land was not being achieved to any large degree under the act; the quantity of land that could be lawfully acquired by one person was being habitually evaded; and land was being used for stock grazing. Individuals and corporations controlled quantities of land through collusive entries. Rather than reclamation, the owners' frequent intent in appropriating lands in valleys and along streams was to control the "ranges dependent upon the water-supply and to prevent the settlements [from] interfering with such control."14 Secretary of the Interior Lucius Q. C. Lamar reaffirmed these findings in 1885 when he asserted that the act had allowed the dishonest to appropriate nondesert public lands and to claim larger acreages than were legal. Fraud was the rule rather than the exception. Principally, the law was being used to "obtain possession and control of lands by mere formalities of entry,

11 U.S., Congress, House, Preliminary Report of the Public Lands Commission, House Executive Document no. 46, 46th Cong., 2d sess., 1880, p p . 4 8 1 , 512, 636, serial no. 1923. 12 U.S., Congress, House, Report on the Lands of the Arid Region of the United States, with a More Detailed Account of the Lands of Utah by J. W. Powell, House Executive Docum e n t no. 73, 4 5 t h Cong., 2d sess., 1878, p p . 24, 28, serial no. 1805. See also, " O u r Available Public L a n d s , " Nation 26 (May 2, 1878) : 2 8 8 . An excellent summary of Major Powell's report is found in Wallace Stegner's introduction to J o h n Wesley Powell, Report on the Lands of the Arid Region of the United States (Cambridge, Mass.: H a r v a r d University Press, 1962), p p . viiâ&#x20AC;&#x201D;xxv. a3

22 U . S . Statues at Large, 623.

Ending

Annual Report of the Commissioner of the General June 30, 1884 (Washington, D.C., 1 8 8 4 ) , p . 8.

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without reclamation, and largely of lands naturally well-watered or ordinarily cultivable without irrigation."15 According to John T. Ganoe, author of the most comprehensive studies of the Desert Land Act, these changes "were directed against cattlemen. In attempting to formulate a reclamation policy for the arid lands, Congress had not considered their use for grazing purposes." The easterners who dominated the Congress expected the arid lands of the West "to be transformed into a rich agricultural region like that of the Ohio and Mississippi valleys. Gov. Eli H. Murray noted deficiencies in land laws. Westerners were fully aware of what USHS collections. was taking place; and, moreover, if the cattlemen seized the lands, it was not entirely without invitation."16 Most of the territorial governors viewed the sharp criticisms of Secretary Lamar and Commissioner McFarland as inappropriate. Despite the law's glaring flaws, the governors of Montana, Wyoming, Idaho, and Utah considered the measure a godsend, making lands available for grazing if not for irrigation farming.17 Although Gov. Eli H. Murray of Utah did not deny the existence of fraud, he perceived the entire national land system, except for the Homestead and Preemption acts, as "nothing more than an invitation for the people to commit frauds." The Desert Land Act, Murray explained, required reclamation through irrigation. Yet, in Utah the "mountain streams are so small that at times late in the season the majority are entirely dry, and it is almost impossible to get water sufficient to reclaim as required under the act." Even where adequate water was available, the lands taken under the act would have been "more valuable for the people if . . . held by the government for actual settlement under the homestead or pre-emption laws."18

15 U.S., Congress, House, Report of the Secretary of the Interior, 1885, House Executive Document no. 1, pt. 5, 49th Cong., 1st sess., 1885, v. 1, p p . 39, 225, serial no. 2378. 16 John T . Ganoe, " T h e Desert Land Act in Operation, 1877-1891," Agricultural History 11 ( 1 9 3 7 ) : 1 4 4 - 4 6 . " Gates and Swenson, History of Public Land Law Development, p . 640. 18 Report of the Secretary of the Interior, 1885, v. 2, p . 1029.

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One of the major deficiencies of federal land policy in Utah had long been the inability of livestock interests to obtain sufficient grazing lands. Out of necessity, grazing in Utah was conducted on an entirely different basis from that of many other western states and territories. Utah's stockmen usually needed both a winter and a summer range, the former in protected valleys and the latter in the foothills. Under this system it was necessary for a stockman to have control of two grazing areas instead of one. Existing laws assured him of neither. As Samuel Gilson, who raised horses and cattle on a ranch near Castle Valley in central Utah, told the Federal Land Commission in 1879, the "pastoral interests in Utah labor under great difficulties from the fact that no one person [who] pastures cattle upon the range can be secure in his occupancy because of "no permanency of residence, and no identification of any pastoral interests with the soil."19 This system produced frequent conflicts and rapid depletion of the grasses and led to demands for relief by Utah stockmen not unlike those of their western contemporaries. Because of the stringent requirements imposed by the Department of the Interior under the Desert Land Act, Governor Murray felt, "stockmen, in their own interests, have entered lands about the springs and streams for the purpose of watering stock." In Utah water is so scarce "that a company of four or five men engaged in [the] stock business can enter the same number of springs and streams, paying the government for not more than a section or two of land and virtually get the use of thousands of acres that cannot be settled or entered under any of the present land laws." As a consequence, Murray recommended legislation in 1885 that would authorize the leasing of "all mountain and high bench lands to applicants for stock purposes, said leases always subject to actual settlement by persons seeking homes, or an act for the sale of such land to stockmen, without requirements, the acreage allowed to be purchased by them to be governed by the amount of stock actually owned."20 Governor Murray's suggestions went unheeded. Two years later, in 1887, when there was a marked decrease in desert land entries, Secretary of the Interior Lamar concluded that new land office policies instituted to bring about compliance with the various provisions of the law were working. At last, "speculators and other 49 U.S., Congress, House, Preliminary Report of the Public Land Commission, House Executive Document no. 46, 46th Cong., 2d sess., 1880, serial no. 1923. See also George Lofstrom Strebel, "Irrigation as a Factor in Western History, 1847-1890" (Ph.D. diss., University of California, Berkeley, 1965), p p . 2 3 5 - 3 6 . 20

Report

of the Secretary of the Interior,

1885, v. 2, p. 1029.

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evaders of the law have found out t h a t . . . it is not safe for them to attempt to patent land without honest compliance with the necessary legal prerequisites." 21 However, subsequent studies, made from a point of greater perspective, attribute this decline primarily to the fact that the cattle industry had undergone fundamental changes by the mid-1880s. By that time, the "range had ceased to be a frontier industry and had become a corporate enterprise, organized, capitalized, and directed in the East or in Britain." In addition, cattle ranchers faced new difficulties such as cattle diseases and local quarantine laws, conflict with settlers and sheepmen, and the fencing of once-open ranges. These factors, together with the federal government's determination to more strictly enforce its land laws all contributed to the decline of the cow kingdom. "Then came the two terrible winters of 1885-86 and 1886-87 which almost annihilated the herds on the open ranges."22 Unfortunately, almost nothing has been written about how these various changes in the cattle industry affected Utahns. What is known is that fewer and fewer individuals in Utah sought to use the Desert Land Act during the next two decades (with the exception of one year) even though there was an extraordinary increase in the number of cattle and sheep in the territory. Obviously, cattlemen and sheepherders in Utah were using other means to satisfy their grazing needs, but what these were remains unclear.23 Initially, the Desert Land Act was helpful because it allowed for the patenting of a larger area (640 acres), but its irrigation and financial requirements ultimately proved to be debilitating deterrents 21 U.S., Congress, House, Report of the Secretary of the Interior, 1887, House Executive D o c u m e n t no. 1, pt. 5, 50th Cong., 1st sess. 1887, p. 6, serial no. 2541. 22 Q u o t e is taken from Samuel Eliot Morison and H e n r y Steele Commager, The Growth of the American Republic, 2 vols. (New York: Oxford University Press, 1 9 6 2 ) , p p . 151-52. J o h n T . Ganoe writes that "great iosses had resulted from overstocking the ranges and the severe winters, and the profits of the industry showed a marked decrease beginning in 1885. This situation naturally affected the n u m b e r of desert-land entries." Ganoe, " T h e Desert Land Act in Operation, 1 8 8 7 - 1 8 9 1 , " p. 146. See also U.S., Congress, House, The Range Cattle Traffic, House Executive D o c u m e n t no. 267, 48th Gong., 2d sess., 1885, serial no. 2304; E d w a r d Everett Dale, The Range Cattle Industry: Ranching on the Great Plains from 18691925 ( N o r m a n : University of O k l a h o m a Press, 1960), p p . 9 4 - 9 8 ; R o b e r t E. Riegel and Robert G. Athearn, America Moves West (New York: Holt, R i n e h a r t and Winston, 1964), p p . 5 4 1 - 4 2 ; Walter Prescott Webb, The Great Plains (New York: Grosset & D u n l a p , 1931), pp. 237-40. 23 Charles S. Peterson, the lone historian to provide any meaningful insight into the changes taking place in U t a h during the 1880s, attributes the rapid passing of the great cattle outfits (at least in U t a h ' s San J u a n ) , to several forces. Perhaps the most i m p o r t a n t single factor, in Peterson's opinion, is the "Confrontation of two diverse livestock systems a n d their a t t e n d a n t social patterns. In the short run, cooperative m a n a g e m e n t and village society enabled the Mormons to offset the disadvantages of a belated entry into the livestock business a n d between 1885 a n d 1887 to emerge as a major element in southeast U t a h ' s grazing industry. T o accomplish this, M o r m o n s effectively barred Gentiles access to summer ranges t h a t were

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for most. Only a few men were able to adapt as well as Edmund Carlisle. Among the most important desert entries filed in the 1880s were the various claims entered by "Carlisle and his employees when the Carlisle Ranch was threatened by the Mormon village of Monticello." Although both cattlemen and sheepherders were often guilty of overgrazing in Utah and frequently unable to fulfill the various provisions of the act, a "careful scrutiny of the Land Office records for the years 1877 to 1910 fails to reveal widespread fraud under the Desert Land Act in Utah, as was the case in Wyoming and other Western territories." 24 Increasingly, desert land entries became associated with the interest investors showed in the rapidly developing irrigation companies. Governor Murray in his annual report of 1885 directly attributed the increase in the number of desert land entries in Utah to the building of canals for reclamation purposes.25 Encouraging as this trend was, irrigation on a smaller, less sophisticated scale was already an institution in Utah. "The resourcefulness of the Mormons in wresting abundance from the most forbidding wastelands has taken its place among the legends of American folklore." Their initial experience with irrigation, the first within a U.S. territory, occurred in July 1847 when in desperation they were forced to irrigate before they could plow their lands. The canals the Mormon settlers subsequently built were those that could be constructed simply and quickly by a few with a minimum of capital investment. "Impelled by necessity and favored by an abundance of small streams, [they] built village irrigation systems with local resources and without developing engineering techniques needed to tap the waters of large rivers and distribute water from a single canal system over extensive the key to overall grazing capacity in a desert country and seized water rights previously used a n d claimed by the big cow outfits." See Charles S. Peterson, "San J u a n in Controversy: American Livestock Frontier vs. M o r m o n Cattle Pool," in T h o m a s G. Alexander, ed., Essays on the American West, 1972-1973, Charles R e d d Monographs in Western History, no. 3 (Provo, U t . : Brigham Young University Press, 1 9 7 4 ) , p p . 4 5 - 4 6 . For more general accounts of the cattle and sheep industry in U t a h see U.S., Congress, Senate, The Western Range, Senate D o c u m e n t no. 199, 74th Cong., 2d sess., 1936, p p . 1 1 9 - 3 3 , serial no. 10005; H e r b e r t H o w e Bancroft, History of Utah 1540-1886 (San Francisco, 1 8 8 9 ) , p p . 7 2 8 - 3 2 ; James A. Bennett, Hereford History in Utah: With Brief Reviews of the Cattle Industry in Utah and the United States (Salt Lake City: U t a h Hereford Association, 1976), p. 17; Ezra A. C a r m a n , H . A. H e a t h , and J o h n Minto, U.S., D e p a r t m e n t of Agriculture, Bureau of Animal Industry, Special Report on the History and Present Condition of the Sheep Industry of the United States (Washington, D . C , 1892), p p . 8 0 2 - 1 0 ; A. C Esplin, et al., Sheep Ranching in Utah (Logan, Ut., 1927), U t a h Agricultural Bulletin no. 203, p p . 4 - 9 ; D o n D . Walker, " T h e Cattle Industry in U t a h , 1 8 5 0 - 1 9 0 0 : A Historical Profile," Utah Historical Quarterly 32 ( 1 9 6 4 ) : 1 8 2 - 9 7 ; E d w a r d Norris Wentworth, America's Sheep Trails (Ames: Iowa State College Press, 1948), pp. 225-36. 24 Charles S. Peterson, Look to the Mountains: Southeastern Utah and the La Sal National Forest (Provo, U t . : Brigham Young University Press, 1975), p. 165; George W. Rollins, "Land Policies of the United States as Applied to U t a h to 1910," Utah Historical Quarterly 20 ( 1 9 5 2 ) : 250. 25 Report of the Secretary of the Interior, 1885, v. 2, p . 1029.

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land areas." Although the Mormon example was convincing, other settlers in the West found it difficult to emulate and had to devise their own irrigation systems. "The Mormon system worked well enough for the Mormons in U t a h " ; but it was "not especially instructive to others," for Mormon achievements derived to a very large degree from a unique cooperation that the hierarchical structure of the church was able to maintain. 26 Yet, by 1891 when the delegates to the first National Irrigation Congress met in Salt Lake, Utah's irrigation system was looked upon as "archaic and ineffective." Nevertheless, the Mormons were praised by the editors of Irrigation Age, for perfecting the "different mode of life" necessary for the successful settlement of trans-Mississippi regions and in so doing creating a "society sufficiently apart from the American mainstream to retain a sense of distinctive identity." 27 Even Utah with its church-nurtured community spirit was occasionally confronted by those who sought (or were accused of seeking) to gain public lands by questionable means. One such attempt, aimed at taking advantage of the Desert Land Act to gain more land in Cache Valley was launched by the residents of Trenton and several outsiders in 1880 when they incorporated the Weston South Field Irrigation Company, even though they knew there was no water in the South Field ditch, or Trenton Canal as it came to be called, to irrigate the land it then served. As anticipated, even after the canal was lengthened four miles the following year, "the water supply was [still] insufficient for irrigation," but the "important goal had been accomplished. Water actually reached central Trenton from Weston Creek, and the conditions of the Desert Land Act were met." 28 Further west, Lorenzo D. Newman of Corinne on July 5, 1877, filed a desert claim for some 150 acres on an island in the Bear River. Three years later, on May 8, 1880, Newman submitted the required documents to the Salt Lake Land Office to complete his claim. The improvements on the island satisfied all the provisions of the Desert Land Act, but final payment was postponed until an official survey of the land could be completed.29 Newman continued to farm at least a portion of 26 Leonard J. Arrington a n d D e a n M a y , " 'A Different M o d e of Life': Irrigation and Society in Nineteenth C e n t u r y U t a h , " Agricultural History 49 (1975) : 3, 10, 11. 27 Quotes are taken from ibid., p p . 1 2 - 1 3 , 20. 28 Andrew Jeffrey Simmonds, " T h e Big R a n g e : A History of Cornish, T r e n t o n , Clarkston, Newton, a n d Amalga, U t a h . " ( M . A . thesis, U t a h State University, 1 9 6 7 ) , p p . 33-34. See also A. J. Simmonds, " W a t e r for the Big R a n g e , " Utah Historical Quarterly 39 ( 1 9 7 1 ) : V ; 2.26-227. ~ 29 Included as p a r t of N e w m a n ' s final proof was a sketch showing t h a t the l a n d covered by his entry "instead of being an island was in the form of a peninsula intersected by several

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his claim until late October 1888 when he sold it to Albert Barnes, also of Corinne. During the next six years Barnes spent between $2,000 and $3,000 constructing fences, sheds, and corrals; repairing the home which came with the property; and hauling "upwards of 1,000 loads of manure" to improve the land. Then, in 1894, to his chagrin, Barnes learned that three years earlier Lorenzo Newman, despite no longer owning the land, had asked the General Land Office to cancel his never-completed 1877 desert land entry. Barnes immediately applied for and obtained a reinstatement of the entry. He then sought, by virtue of his purchase from Newman, to be allowed to pay for and claim the tract once it was surveyed.30 However, Barnes died a few months later and his widow Emma was left to resolve the matter. Mrs. Barnes and her children decided to cancel the entry since they could not comply with the financial and improvement provisions of the act. As late as August 1905 Emma Barnes was still seeking to obtain a "repayment of the money paid to the General Land Office in Salt Lake on the Desert entry of Lorenzo Newman" who, she claimed, had assigned the entry to her husband. 31 A more celebrated claim adjustment case involving desert lands within the La Sal National Forest of southeastern Utah required thousands of hours of time and a major effort on the part of the Forest Service before it was finally settled. This contest involved two desert land claims filed on a site known as Mormon Pasture. In 1887 Mormon Pasture was chosen as the site of a prospective town, but for a variety of reasons it passed through several owners and renters during the next several years. Then in 1903 and 1904 David L. Goudelock, a former county commissioner and principal stockholder in the Indian Creek Cattle Company, and his sister filed desert claims on the land. Soon thereafter serious questions arose as to whether the land was actually desert in character and if the Goudelocks' claims were valid considering the almost continual use of the property during the preceding decade. Ultimately, despite a herculean effort on the part of the Forest Service in gathering sloughs of the Bear River." S. W. L a m o r e a u x , Commissioner, General L a n d Office, to Register a n d Receiver, U . S . L a n d Office, Salt Lake City, J a n u a r y 27, 1897, Canceled Desert L a n d E n t r y 96, U n i t e d States L a n d Office, Salt Lake City, Box no. 256, Records of the Bureau of L a n d M a n a g e m e n t , Record G r o u p 49, National Archives. I n the deposition N e w m a n filed at the time, he stated t h a t he h a d raised wheat, oats, potatoes, vegetables, a n d good lucerne on about 40 acres of the tract. T h e water to irrigate was p u m p e d from the Bear River by means of a steam engine. Newman's deposition and those of E d m u n d P. Peterson a n d Sid Venable who were witnesses in his behalf, are found in ibid. 30

Affidavit of Albert E. Barnes, 13 November 1894, ibid. T h e correspondence a n d documents from which these details are drawn are found in ibid. E m m a Barnes's appeal was certainly not an isolated case. Examples of similar cases are found in Brent Rulfson, Canceled Desert L a n d Entry no. 7, and George R. Maxwell, Canceled Desert L a n d Entry no. 72, ibid. 31

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documentation and testimony to support its position, Goudelock successfully appealed the validity of this land entry before the secretary of agriculture. 32 During the first quarter-century of the Desert Land Act's existence (1877â&#x20AC;&#x201D; 1901), 4,929 individuals successfully filed entries for 928,541 acres, and 1,448 of those entries for 252,958 acres were patented under the Desert Land Act in Utah. Under the Homestead Act for the same period 6,595 individuals gained ownership to 922,770 acres.33 Charles Hillman Brough in his excellent nineteenth-century study, Irrigation in Utah, contended that more settlers did not gain title to desert lands in Utah during this period beGeorge Thomas, cause the law's provisions were more irrigation expert. compatible with the resources of specUSHS collections. ulators. Another prominent authority on western irrigation institutions, George Thomas, claimed the failure of the law to attract more Utahns was "primarily due to the fact that the legislation was based upon the theory of individual action; an impossible procedure in reclaiming any considerable area of arid lands." Six hundred and forty acres was too large an area "for the individual irrigator to reclaim and altogether too small for the capitalist to consider with the view of supplying water and selling it to actual settlers." At the time the Bear River Canal was begun in Utah, Elwood Mead, chief of the irrigation investigations conducted by the Department of Agriculture near the turn of the century, asserted that the canal would irrigate "unoccupied sagebrush desert. Before its survey was completed and in less than thirty days after it was begun, every acre of the land had been filed upon. Three years later not one in fifty was being irrigated by the original entrymen." For Mead, the idea of giving "640

Peterson, Look to the Mountains, p p . 165-67. Computations are derived from statistics found in U . S . , Congress, Senate, Report of the Public Land Commission, Senate D o c u m e n t no. 189, 58th Cong., 3d sess., 1905, p p . 1 7 6 82, 272, serial no. 4766. 33

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acres of such land to a single individual was not generosity; it was a profligate surrender of a great public resource."34 Finally, after a tremendous outpouring of sentiment on the question of arid lands, Congress in 1890 approved a clause in the Miscellaneous Appropriation Act of August 30 that limited to 320 acres the total amount of land a person could acquire title to under any or all of the land laws. Seven months later, on March 3, 1891, Congress approved an act designed to provide a remedy for previous abuses. Under the new provisions an individual making desert land entry was required to file a map detailing his proposed irrigation and reclamation plan and to prove he had access to sufficient water to carry it out. Entrymen were also permitted to "associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts" and could "file a joint map or maps showing their plan for internal improvements." Those filing were required to spent $3.00 per acre for improvements and $1.00 per acre each year in securing water. They were also required to show proof of this expenditure each year. If during any year before the final entry was made an entryman failed to show such proof, the filing fee would be forfeited to the United States and the entry would be cancelled. Under these provisions the act was limited to individuals and extended to include the state of Colorado.35 Enactment of these new features fulfilled only momentarily their purposes in Utah where there was a rapid decrease in both original and final entries within the next decade. From a purely practical standpoint neither 640 nor 320 acres were needed to satisfy the average Utahn who irrigated his farm during this period: the 1890 census reveals that 9,724 farmers (92.46 percent of all farm owners) irrigated in Utah. The average size of these irrigated holdings was just 27 acres, while fewer than 10 percent of the irrigated farms comprised more than 160 acres.86 These figures in a very real sense reflect the overwhelming importance of the Mormon experimentation in property rights: a system under which property was allocated and regulated by the church in accordance with the principal of stewardship. "When Utah became a territory this 34 Charles Hillman Brough, Irrigation in Utah (Baltimore, 1898), p. 5 8 ; George T h o m a s , The Development of Institutions under Irrigation with General Reference to Early Utah Conditions (New York: Macmillan Co., 1920), p . 2 3 3 ; Elwood Mead, Irrigation Institutions: A Discussion of the Economic and Legal Questions Created by the Growth of Irrigated Agriculture in the West (New York: Macmillan Co., 1 9 0 3 ) , p p . 2 0 - 2 1 . 35 26 U . S . Statutes at Large, 3 9 1 , 1096-97. 36 U.S., D e p a r t m e n t of the Interior, Census Office, Report on Agriculture by Irrigation in the Western Part of the United States at the Eleventh Census: 1890, by Frederick Haynes Newell (Washington, D . C , 1894), p . 218.

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system of public ownership was confirmed by the legislature and placed under the legal supervision of the county courts."37 The desire to populate the Great Basin with as many families as could make a living on the limited amount of arable land was central to the whole idea of Mormon cooperation. Apostle George Q. Cannon, who viewed the operation of this policy firsthand, believed his people had proved that "large tracts of land are not necessary for the public good," even in a semiarid region. There was no doubt in his mind that "small holdings are the best for the people." Legally, the application and enforcement of the Mormon land system was possible because Congress did not enact laws under which land in Utah could be privately held until 1869. As a result, the burden of allocating and regulating property rights rested primarily, almost out of necessity, with the church. "Until, say, the 1880's, a man could obtain the means of his livelihood (that is, land) simply by going to the bishop and asking where he could settle."38 With the completion of the transcontinental railroad, the Mormon church was confronted with the problem of preventing the railroad companies and other newcomers from acquiring title to the land its members had already settled. The delay in confirming land titles in the Utah Territory until just before the driving of the Golden Spike, Leonard Arrington argues, was "undoubtedly purposeful, being based on the hope of forcing the Mormons to change their social institutions, but actually made it easier for the Mormons to establish and maintain their own somewhat unique property institutions." Once this system was threatened the church sent "individuals on missions to assist local settlers throughout the territory with their land title applications." As a result, "there appears to have been a minimum of injustice done to the people of Utah (viewing it from the Mormon position)." 39 The essential ingredient of Mormon colonization was the submergence of individualism. Although property rights were most often not communal, they were incidental to the common goal of working together. Church supervision continued until as late as 1904 as the Mormons "demonstrated the effectiveness of central planning and voluntary cooperation in developing a large semiarid region. As the waste involved in shortsighted, unplanned, and ruthless exploitation of other 3

' L e o n a r d J. Arrington, Great Basin Kingdom: An Economic History of the Latter-day 1830-1900 (Cambridge, Mass.: H a r v a r d University Press, 1 9 5 8 ) , p p . 25, 53. 38 Ibid., p. 93. 39 Ibid., p p . 93, 249-50. See also Lawrence B. Lee, "Homesteading in Zion," Utah Historical Quarterly 28 (1960) : 2 9 - 3 8 .

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western frontiers became more apparent, the Mormon pattern became increasingly appreciated."40 Understandably, the Desert Land Act was not easily adaptable to a society where individualism and speculation were the exception rather than the rule, where small landholdings were predominant, and where those engaged in cattle ranching needed considerably more than 640 acres to be competitive. During the first decade of the twentieth century a more prosperous economy, a revived interest in irrigation prompted by the vigorous efforts of the National Irrigation Association, and President Theodore Roosevelt's firsthand knowledge of the needs of the arid regions resulted in a rapid increase in desert land entries in all the states and territories under the act with the exception of Utah. Not until 1907 did Utahns join with their western neighbors in showing any special enthusiasm for acquiring public lands under provisions of the act when original entries jumped from 49 to 301 and from 7,581 acres to 52,870.82.41 Still, the problems long associated with the act for the most part remained unresolved. President Roosevelt in his second annual message on December 2, 1902, made a stinging attack on the perverted acquisition of public lands under the Desert Land Act and two other laws that had permitted the "acquisition of large areas of the public domain for other than actual settlers and the consequent prevention of settlement." Meanwhile, the National Irrigation Association began an all-out campaign for the repeal of all land laws; and the Public Land Commission, which the president had appointed in 1903 to investigate the public land system, specifically recommended several significant changes be made in the act.42 Ultimately, a "Congress, unwilling to antagonize the West by the repeal of the act, adopted the safer policy of trying to remedy the existing abuses." On March 28, 1908, Congress approved legislation that "provided that no assignment would be recognized unless the person to whom it was made was eligible for entry, and that entries could not be made on unsurveyed lands. It was believed that this would prevent the accumulation of large holdings, and to a considerable extent this view was justified."43 40 Arrington, Great Basin Kingdom, p. 411. See also Leonard J. Arrington, "Property among the Mormons," Rural Sociology 16 (1951) : 339-52. 41 U.S., Department of the Interior, Report of the Commissioner of the General Land Office to the Secretary of the Interior for the Fiscal Years Ending June 30, 1906-1907 (Washington, D . C , 1906-7). 42 Richardson, Messages and Papers of the Presidents, 1 4 : 6 7 2 5 ; Ganoe, " T h e Desert Land Act Since 1891," Agricultural History 11 (1937) : 2 6 9 - 7 3 ; Report of the Public Land Commission, 1905, pp. xviii-xx. 4a Ganoe, " T h e Desert Land Act Since 1891," p. 273.

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With the outbreak of World War I fewer individuals found the act attractive, and in 1914 the collapse of the irrigation securities market signaled a diminishing use of its provisions for the next twenty-five years. Activity under the Desert Land Act reached an all-time low in the fiscal year ending June 30, 1937, when not a single original entry was allowed and only three final entries were approved. During the next ten years, 1938-47, only five original entries and twenty-four final entries were recorded.44 Then, beginning in 1948, there was a renewal of activity under the act "as part of the general upsurge in farm-land development stimulated by higher farm real estate values and favorable ratios of farm commodity prices to farm production costs." Several important factors influenced this renewed interest, including recent developments that provided "greater technological efficiencies in well drilling, pumping, and irrigating; the extension of rural electrification; and the general improvement in desert living opportunities through such means as highways, refrigeration, and air conditioning."45 Utah, however, has never had more than twenty-nine original entries or more than twelve final entries a year approved during the last three decades (1948-79). Any increased activity under the act in Utah has been primarily attributed to ground-water development. Few family farms have been developed under the program, and the administrative problems and financial burdens the Bureau of Land Management has inherited in processing and investigating the merits of the hundreds of unsuccessful applications have been considerable. An extensive study of these applications, undertaken by Clyde E. Stewart of the U.S. Agriculture Research Service in 1960, identified the principal areas of application during the decade of the fifties as Skull Valley in Tooele County, San Juan County, Leota-Ouray in the Uinta Basin, River Bed in Juab County, Snake and Pavant valleys in Millard County, and Grouse Creek in Box Elder County. Few entrymen during this period were successful. "Nearly 65 percent of all applications [between 1948 and 1957] were rejected and closed because of poor 14 U.S., D e p a r t m e n t of the Interior, Report of the Commissioner of the General Land Office to the Secretary of the Interior for the Fiscal Years Ending June 30, 1905-1946 (Washington, D . C : Government Printing Office, 1 9 0 5 - 4 6 ) ; U.S., D e p a r t m e n t of the Interior, Annual Report of the Director of the Bureau of Land Management, 1947. Statistical Appendix (Washington, D . C : D e p a r t m e n t of the Interior, 1947). 43 Karl S. Landsrom, "Reclamation u n d e r the Desert-Land Act," Journal of Farm Economics 36 (1954) : 5 0 1 - 4 . See also Karl S. Landstrom, "Reclamation u n d e r the Desert L a n d Act, 1954-1959," Journal of Farm Economics 42 (1960) : 6 2 9 - 3 8 ; Clyde E. Stewart, " H o m e steading in the Nineteen Fifties: A Revival of the Desert L a n d Act in U t a h , " Farm and Home Science 20 ( M a r c h 1959) : 16.

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soil and water resources or because applicants failed to meet requirements of the act. Final proof and patent were achieved by only 25 of 400 applications." Of these "only 82, or a fifth of all applications, were allowed, thus permitting the applicants to proceed with development." Nearly a third of the entrymen who drilled wells failed to find water; only one out of four acquired patents.46 Even when applicants found acreage with adequate basic physical resources, the large capital investment needed for private ground-water development posed an almost insurmountable problem. These drawbacks, together with physical and climatic limitations, proved to be powerful deterrents to the development of desert land tracts in Utah. In addition, costs for clearing, leveling, and fencing a desert tract of 320 acres in the 1950s "ranged from $17,000 to $40,000, depending primarily on the depth and adequacy of the water supply and the kind of residence, if any. These estimates do not include farm buildings. An important waiting cost is also incurred during the first several years because all land may not be in production for some years." (If one presumes that the costs of developing desert land tracts in Utah have kept pace with the prevailing rate of inflation, Stewart's estimates would now range from about $54,000 to $128,000.) Stewart found that few Desert Land Act applicants in Utah actually "intended to farm the land." Some hoped to use the land to get a start in farming, but most did not. Only two of the applicants Stewart interviewed actually lived on their desert land tract. Approximately one-fourth of the applicants indicated an intention to live on the land after it was developed but often "knew only vaguely where the tract of land for which they had filed was situated."47 Stewart nevertheless felt the desert land program had proved useful in the areas he studied because ground-water resources had been investigated and applicants and federal agencies had gained experience and information necessary for future planning. ,s

46 Clyde E. Stewart, Recent Land and Ground-Water Development in Utah under the Desert Land Act: An Economic Appraisal (Logan, Ut., 1960), U t a h Agricultural Experiment Station Bulletin no. 418, pp. 3-4. 47 Ibid., pp. 27-29. See also Clyde E. Stewart, "Problems in Acquiring a Farm under the Desert Land Act," Farm and Home Science 20 (September 1959) : 61-62. The projected costs of developing a desert land entry in 1977 are based on each 1955 dollar being equivalent to $2.37 in 1977. The 1978 Economic Report of the President (Washington, D . C : Government Printing Office, 1978), contains a table (Table B-3, implicit price deflators for gross national product, 1929-77, p. 260), which provides the figures needed to make such a conversion. In 1979 the BLM estimated that it would cost between $300 and $500 per acre to develop a Desert L a n d Act farm. Paul Herndon, " W h a t Are Your Prospects in Desert Landâ&#x20AC;&#x201D;in Nevada," Our Public Lands 29 (Summer 1979). 48 Stewart, Recent Land and Ground-Water Development, p. 5.

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In the two decades since Stewart undertook his analysis (1958-79), 18,270 acres have been patented under the Desert Land Act in Utah, but only 1,982 acres of this total have been approved for final entry by the Bureau of Land Management since July 1, 1968. Since 1972 only one entry of 40 acres has been approved for final entry in Utah. The trend represented by these figures appears irreversible, inasmuch as since 1968 not a single original entry has been approved. 49 After a century the Desert Land Act has outlived its usefulness in both the eyes of potential entrymen and the BLM. Unheralded, almost unnoticed, Congress in 1976 repealed the Homestead Act. At the same time it refused to repeal the Desert Land Act and the Carey Act of 1894 under which the federal government could make up to one million acres of public desert lands available to specific states. "Today," in the words of Paul Herndon of the BLM, "these two laws stand as a beacon of hope for thousands of Americans who continue to look to the Federal Government for low-cost land. Unfortunately the hope is glimmering instead of glittering." Only in Idaho, where farmers have been successful in irrigating the Snake River plateau, does the act appear to have a future during the next decade. 50 The perennial problems of too little water and a lack of adequate financing seem to have finally spelled its doom in Utah, as virtually everywhere else. With its passing still another chapter of America's frontier history has been irrevocably closed. 49 U.S., Department of the Interior, Bureau of Land Management, Public Land Statistics, 1958-1977 (Washington, D . C : Government Printing Office, 1958-77). 30 Paul Herndon, "What Are Your Prospects in Desert Lands in Idaho," Our Public Lands 29 (Summer 1979): 12. The details of developments in Idaho are found in ibid.; Ed Chaney, "The Last Idaho Land Rush: Growth at Any Cost?" Audubon (November 1977):154-57â&#x20AC;˘ Ed Chaney, The Desert Land and Carey Acts in Idaho: Implications for Existing Farmers and Ranchers (Boise, Ida.: Idaho Conservation League Agricultural Lands Project, 1977), p. 17.

A. Ray Olpin and the Postwar Emergency at the University of Utah BY ELINORE H . PARTRIDGE

University of Utah, ca. 1930, with Fort Douglas in the USHS collections.

background.

V / U T A HOLE IN T H E F E N C E AND LET T H E BOYS T H R O U G H 1 . "

The

fence of rather flimsy barbed wire separated the University of Utah from Fort Douglas. The suggestion to breach it came from Gen. Dwight D. Eisenhower, chief of staff of the U.S. Army, who had been listening on that February 18, 1946, to the new president of the university, A. Ray Olpin, describe a common dilemma on the nation's campuses: "We have students coming out of our ears." The G.I.'s returning from World War II were looking for an education and a place where they and, in Dr. Partridge is writing a book on the Olpin years commissioned by the Bicentennial Committee on Publications at the University of Utah.

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many cases, their families could live. The enrollment at the university had almost doubled between the fall 1945 and winter 1946 quarters. Olpin hoped to use some of the facilities at Fort Douglas to ease the overcrowded conditions on campus. Eisenhower, on a nationwide tour of army bases, had managed to spare a few minutes from his busy schedule to meet with some local civilians at the Hotel Utah. Olpin had hastily excused himself from a faculty meeting and rushed downtown to take advantage of the opportunity. He and Salt Lake City Mayor Earl J. Glade entered together "a room full of brass." 1 As Olpin described it, "There was a colonel or a lieutenant general at every step." Eisenhower greeted him cordially and introduced Maj. Gen. William E. Shedd, head of the Ninth Service Command, who was then making plans to move his command from Fort Douglas to the Presidio of San Francisco. Eisenhower recognized the emergency facing the university because of the returning veterans. On the way to Utah he had stopped in Kansas where his brother, Milton, then president of Kansas State College in Manhattan, was facing the same conditions. It was that way throughout the country, Eisenhower observed, and one of the things he was trying to do on this tour was to see what could be done to aid the colleges and universities. He felt that the veterans who had interrupted their lives to fight for their country should be assured of a chance to have an education if they wanted it. Olpin pointed out that the location of the university "just through the fence" from Fort Douglas put it in an excellent position to use the facilities being vacated by the Ninth Service Command. T h a t was when Eisenhower turned to General Shedd and told him to cut a hole in the fence. Shedd objected, citing a federal law against civilian use of army posts. "That law will be changed when I get to Washington," Eisenhower declared. "I've fought with those boys; I crossed the Channel with two million of them. They're good boys, and I have great affection and respect for them. Let them have everything you canâ&#x20AC;&#x201D;extra facilities, supplies, and furnitureâ&#x20AC;&#x201D;nothing's too good for them." A solution to the university's problem, one of long-range consequence, thus began to take shape. 1 Unless otherwise indicated, the information utilized in this paper was obtained through personal interviews with President Olpin by the writer and from his papers in the University of Utah archives. Many of the papers used were extracted and organized by Dr. Jeri Parker, whose fine research the writer wishes to acknowledge here. The story of the acquisition of Fort Douglas is told primarily from the point of view of President Olpin, although many others, not mentioned, were involved in this project. The writer hopes they will understand the difficulty of giving proper credit to all who deserve it.

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Housing was the first need to be met. The Federal Public Housing Authority allowed the use of military facilities for temporary housing of veterans, and the director of war mobilization and reconversion recommended to President Harry S. Truman that unused army and navy facilities be made available to colleges and universities on a no-cost lease arrangement. On that basis, early in March 1946 General Shedd turned over to the university the area directly east of the campus which had been used for the WACs. Known as the "Douglas dormitories" for the short period they were used for housing, these buildings were put to immediate use to shelter about 320 single veterans. Another dormitory building, purchased from the Geneva steel plant, was set up west of the U.S. Mines Building. The most pressing housing needs, however, were felt by the veterans with families. City housing was not only inadequate, it was also too expensive for most of these young families. Olpin and his staff worked throughout the spring of 1946 to acquire family-dwelling units from central and southern Utah, Arizona, California, and Oregon. By summer, after countless telegrams between Olpin and United States Senators Abe Murdock and Elbert D. Thomas, 301 family units were moved into place to form an instant community, Stadium Village, that was briefly the fastest-growing area on the Wasatch Front. During that summer, the Field House, which had been used as a wartime dormitory for the soldiers at Fort Douglas, was vacated. The men were "taken off the floor," as the official announcement put it, and the beds and mattresses were sold to the university at from 20 to 50 percent of cost. Then, in August, Senate Bill 2085 was passed, making military facilities available not just for the housing but also for the education of veterans. Needed classrooms were at hand. When Olpin assumed the presidency of the university on January 1, 1946, the campus consisted of about 153 acres, approximately 225 full-time faculty members, and an enrollment of around 3,000. That winter quarter the enrollment soared to 5,300 and in 1946-47 the total enrollment almost doubled again to 10,026, of whom 5,377 were veterans. Adding to the problem of overcrowding were the financial problems resulting from the state legislature's meagre budgetary allocation, based on the previous year's enrollment, and the red tape surrounding payments through G.I. Bill of Rights. Throughout the spring of 1946 the regents and faculty considered the question of whether to limit enrollment or to expand to meet the overwhelming demand of applicants. The Lower Division Council on

^g W

A. Ray Olpin, University of Utah president. USHS collections.

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Increased Enrollment reported on January 15, 1946, that limitation of enrollment "should be made on the basis of scholastic attainment and promise." More stringent entrance requirements were announced; all residents would have to have at least a " C " average, all out-of-state students a "B" average, to be admitted. All students were required to maintain at least a " C " average to remain at the university. In an editorial appearing on February 12, 1946, the Salt Lake Telegram commended Olpin and other authorities for "their decision to tighten university scholastic standards as an answer to a prospective enrollment far above the institution's capacity." The editorial advised that Utah should resist the temptation to expand the university to meet an unusual enrollment situation just because we have the opportunity of making it overnight a much bigger institution from the standpoint of number of students.

The returning veterans had created an "artificial factor" in the institution's enrollment. The newspaper cautioned against overexpanding to meet what it saw as a transistory situation. Even with more restrictive scholastic requirements it soon became apparent that many fully qualified students from Utah would be turned away if enrollment were limited to numbers the university could comfortably accommodate. The governor and the state legislature, responding to requests of residents of the state, made it clear that the state university should not close its doors to those wishing to find an education there. The university would have to expand; and the regents, the president, the administrative staff, and the faculty would have to search for ways in which this expansion could take place. In a letter dated May 14, 1946, Olpin described the situation to Rep. J . W . Robinson: The University . . . is going to be over-crowded if developed to meet our present requirements. The only direction for expansion is to the East. . . Addition of the present developed section of Fort Douglas to the University campus, either by purchase or by Congressional action, would be a very outstanding accomplishment. Your assistance in this matter will be greatly appreciated.

The immediate problem of supplying adequate classroom space could be solved, Olpin felt, if the university could acquire the use of Building 105, a large structure that had been used for offices and classrooms at Fort Douglas. In May 1946 he went to Washington, D . C , armed with maps of the campus and Fort Douglas. Carrying letters of introduction

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The Field House was used as a dormitory for soldiers stationed at Fort Douglas during World War II. The university purchased the beds and mattresses. USHS collections.

from Senators Murdock and Thomas, he visited the War Assets Administration and pointed out Building 105 as one that would alleviate the shortage of classroom facilities at the university. At the same time, however, other federal agencies were looking at the Fort Douglas buildings as places to locate their services. The Veterans Administration, for example, was urging the United States Employment Service, which had just lost its lease in the Newhouse Building downtown, to move to the fort; and one of the commanding officers at Fort Douglas was working to turn over the entire post to the Veterans Administration. Meanwhile, Gus P. Backman, executive secretary of the Salt Lake City Chamber of Commerce, announced that the office buildings in the downtown area had waiting lists longer than at any time in the city's history and that federal agencies were using too much commercial building space. Editorials in the city newspapers stated that it would be a tremendous waste of taxpayers' money to pay for rentals or new construction when the buildings at Fort Douglas were standing idle. The War Assets Administration itself was interested in Building 105 as a possible Utah headquarters.

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Before the end of the summer, however, Gov. Herbert B. Maw, Mayor Glade, and Senators Murdock and Thomas had all rallied behind Olpin and had sent telegrams to Truman, Eisenhower, and Joseph Stilwell, commanding general at the Sixth Army headquarters at the Presidio. A telegram from Senator Thomas to General Stilwell read, in part: There exists a critical shortage of classroom, office and laboratory space at the University of Utah.. . . Unless additional facilities are made available immediately, 2000 veterans may be denied admission this fall. The additional space required is available at Fort Douglas in Building No. 105. This is the only building suitable for college classroom purposes.

Just before the beginning of fall quarter, the university acquired not only Building 105 but also twenty-one other buildings, some at the fort, others brought in from elsewhere. Additional buildings were acquired later, including a large, H-shaped structure imported from Dugway, that

The Annex, formerly Building 105 at Fort Douglas, has served several generations of university students. USHS collections.

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was used to house the bookstore, later, the center for Intercultural Studies, and, still later, the Center for Middle-Eastern Language and Area Studies. Early in fall quarter an open house featuring refreshments and a brass band was held at Building 105, already becoming known as the Annex. Representatives of the various armed services at the university, several Army officials, faculty members, regents, and President Olpin formed an impressive reception line to greet, during the entire afternoon, about a dozen people, as Olpin later recalled. The Annex and other "temporary" buildings solved a crisis for the University of Utah by providing makeshift classrooms for the veterans of World War II and remained to be used by their children. As the Annex, Building 105 still stands as a landmark for the grandchildren of some of those veterans. Through 1946, 1947, and 1948, university officials continued to work to obtain surplus military equipment. The lists submitted included items ranging from adding machines, acetone, alcohol, ambulances, and augers (clay) to thermofax machines, welders (atomic hydrogen arc), winches, and wire recorders. The bureaucratic red tape involved in transfers of property from the military to the university was complex. "Finding of Need" request forms were submitted in quadruplicate, indicating specific details as to size and type of equipment needed and including a justification of need in terms of veteran enrollment. The possibility of misunderstandings and frustrations was enormous. In October 1946 Olpin received the following puzzled query from Cyril M. Whitlow, chief educational officer, U.S. Office of Education, who was helping to negotiate for the use of buildings and supplies: "It is not clear whether you are requesting 20 pianos only or 20 pianos and a building. If a building is to be included as a need, the facility probably should be designated as a Music Unit. And if a building is needed, where will it be located?" The Botany Department requested a decontamination truck for spraying the trees and shrub' on campus, which were being consumed by some kind of pest. The request prompted this response: We have given your request of June 5. 1947, for a decontamination truck careful consideration in accordance with the purpose of Public Law 697. We are not convinced that this need has any connection whatever with a veteran imposed emergency. You may need the truck; but this need does not derive from the veteran enrollment. Hence, we are compelled to conclude that it is not eligible for approval.

One serious need in the fall of 1946 was for chairs and desks. The students overflowed the classrooms, sitting on laboratory stools, wooden

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benches, radiators, and floors. When Olpin found out that there were some tablet armchairs in storage at the Ogden Arsenal, he initiated what was referred to by one Fort Douglas officer as "the armchair war of '46." Olpin's first inquiry about the chairs was a very polite request to the commanding officer at Fort Douglas, who, after several weeks, responded: "Subject chairs are not available for transfer." After other queries resulted in delays and frustrations, Olpin sent a telegram to Senator Thomas in September outlining the problem: We have begged, bought and procured apparently every available chair of any description in this area . . . but lack from 600 to 1,000 seats for students scheduled to begin classes Monday, next week. Chairs now on hand are kitchen chairs and other undesirable ones. Our problems at Fort Douglas will never be solved until we obtain student or tablet arm chairs, 2,800 of which are in storage and unused in Ogden.

Thomas's office referred Olpin to the Federal Works Agency, which sent him to the Stockton General Depot, which sent him to the Quartermaster General's Office in Washington. After three calls to Washington and one plaintive telegram asking, "Who is responsible for these chairs?" Olpin learned that the request for the chairs had been denied and that nothing short of a directive from the secretary of war or chief of staff could make them available. Olpin's next telegram to Senator Thomas read: "Registration will be completed Monday. Classes begin Tuesday. . . . Must have chairs before classes begin Tuesday. Your further help urgently requested." Thomas replied immediately: "Secretary of War has directed investigation by Proper authorites to determine possibility of loaning chairs." A telephone call to General Eisenhower finally released 1,800 chairs from Fort Douglas. The 2,800 tablet armchairs at the arsenal were declared "restricted material" and remained unavailable. Despite such frustrations, the university benefited greatly from the Surplus Properties Act. During the 1947-48 year the university received $200,000 worth of electronics equipment, $30,000 worth of laboratory glassware, $10,000 worth of furniture, $100,000 worth of machine tools, $100,000 worth of laboratory equipment, and $50,000 worth of miscellaneous equipment, for a total of $490,000. The university paid only transportation costs or, in some cases, for transportation plus 5 percent of value. In a speech before the Utah State Bar Association on January 4, 1947, Olpin gave the federal government much credit for keeping the university in operation. He noted that the state was paying only about

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half as much for university and college education as the next lowest state in the Union. He said that if it were not for the generosity of the federal government in providing temporary quarters for students at Fort Douglas, one-third of the students now enrolled at the University of Utah would be denied the opportunity to complete their college training. He went on to express his hope that the state would reevaluate its needs and recognize that any investments in youth would pay multiple dividends. The state apparently heeded his wrords to some extent. In the following year, when it became known that much of the Fort Douglas land would be declared surplus, the State Reserve Building Fund allocated to the University of Utah $950,000 to help in acquiring the property. Despite the interests of private parties in the land, the governor, the mayor, and Senators Thomas and Arthur V. Watkins all petitioned the War Assets Administration on behalf of the University of Utah. Gus P. Backman and other members of the Salt Lake City Chamber of Commerce flew to Washington to help with the early stages of negotiation for the property. The Chamber of Commerce also helped to resolve some of the conflicts within the city and to deflect some of the private pressures that could have resulted in the fragmentation of the land. The regional director of the War Assets Administration, John S. Skeen, and his deputy, Stansbury Thompson, were also sympathetic, efficient, and cooperative in the process of transferring the property. In September 1948 Thompson notified the university that a final award of 289.59 acres together with sixty-one buildings had been made to the university at 100 percent discount. The formal deed for the land was presented during half-time ceremonies at a game with the University of Colorado in the Utah stadium. Jess Larson, an administrator from the Denver office of the War Assets Administration, said that he knew of no place in the country where surplus property was more convenient and could be more appropriately used for educational purposes. As he handed over the document, he said, "It gives me pleasure to present, on behalf of the United States Government, this deed of property to the University of Nevada." The loud groans from the crowd in the stadium prompted an immediate correction. In turning over to the university this property, the federal government was giving back some of the land that had been originally set aside for a state university. Almost one hundred years before, on February 28, 1850, the General Assembly of the provisional state of Deseret had declared their intention to establish a university and appointed members

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of a Board of Regents.2 In March of that year, three regents were asked to select a site for that university. They chose an area of about 560 acres on the bench east of the city. The original tract included most of the main campus, a portion of Federal Heights, most of what has been since 1948 Fort Douglas, the Veterans Hospital, a portion of Mount Olivet Cemetery, and the property facing the campus on the west side of University Street.3 Although plans for the campus were drawn up, 4 by October 1862 when Col. Patrick Edward Connor claimed 2,560 acres on the east bench for Camp Douglas, the operations of the university had been suspended for ten years because of a lack of funds.5 More than 530 acres of the original 560-acre campus were enclosed within the claimed boundaries of the military reservation. In his study of University of Utah lands, J. R. Mahoney traces the legal history of the title to the property. By a congressional act of 1855 "it would seem . . . that all of the necessary actions in establishing complete claim of the University to its campus were carried out, and that no other action was necessary." However, the sequence of events since that time is evidence of neglect on the part of the Legislature, the Board of Regents of the university, and other officials in the Territory of Utah . . . matched with failure in more specific responsibilities by the Congress of the United States and the Department of Interior. 6

Some of the land was recovered in 1894 when Congress passed an act (for the second time) granting 60 acres to the university. An additional 32 acres were granted on May 16, 1906, and another 61.5 acres in June 1934. Thus, the campus, before its acquisition in 1948, had regained approximately 153 acres of the original tract. 7 The 298.59 acres of land deeded to the University of Utah under the Surplus Property Act provided enough acreage to permit long-range development that would otherwise have been impossible, but buildings that were counted as assets in 1948 had become liabilities by 1959. The 2 Readers w h o wish to know more about the early history of the University of U t a h should see R a l p h V. Chamberlin, The University of Utah: A History of Its First Hundred Years â&#x20AC;&#x201D; 1850 to 1950 (Salt Lake City: University of U t a h Press, 1960). 3 J. R. Mahoney, University Lands: Their History and Potential Development (Salt Lake City: University of U t a h , Bureau of Economic a n d Business Research, 1 9 6 1 ) , p . 22. 4 Chamberlin, University of Utah, p. 16. 3 Mahoney, University Lands, p . 2 1 . 6 Ibid., p . 23. 7 I n 1939 the Bureau of Mines acquired a few acres from the University of U t a h , making the acreage somewhat less.

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yearly cost of painting and maintaining the wooden structures was more than double the cost of maintaining permanent buildings. In an editorial on February 19, 1959, the Salt Lake Tribune noted that the university had begun occupying the frame buildings of Fort Douglas fifteen years before: These structures have deteriorated through the years and the "emergency" has grown into a "super emergency" as enrollment and demands for research and other services have increased beyond careful forecasts. The present enrollment is above 9,300, near the top in the Intermountain West.

The editorial compared the buildings to livestock shelters and seedy urban "renewal" projects. It advised: "The cumulative problem has now caught up with the state and the Legislature can not delay much longer facing up to grim facts." By the time President Olpin retired in 1964, many of the wooden buildings had been dismantled and detailed plans for the new campus had been drawn up. Orson Spencer Hall and the Olpin Student Union had been completed, and ground had been broken and construction begun on several other buildings, including the Medical Center. In 1946 grant monies received by the university for basic research amounted to $183,525; in 1963 the university received $10,122,317. The school had developed from a small, liberal arts college to a major state university occupying at least a part of the land originally designated to it. Recovering this land was not easy. The University of Utah did not simply fall heir to the Fort Douglas land. A number of competing private and public interests wanted very much to obtain that valuable property, and at times the battle for it was grim. One of the presidential assistants during that time has remarked that Olpin would have gone into handto-hand combat if necessary to get Fort Douglas. The battle engaged the determined efforts of regents, university faculty and administration, the state legislature, state and city officials, and the state's congressional delegation. It required breadth of vision and cooperationâ&#x20AC;&#x201D;the ability to see beyond immediate, selfish interests. City, state, and federal organizations worked together successfully and admirably to obtain something that would benefit not a few7 private individuals but, ultimately, all citizens.

Photographing the Frontier. By DOROTHY HOOBLER and (New York: G. P. Putnam's Sons, 1980. 192 pp. $9.95.) In 1839 the American frontier began at the Mississippi River and continued unbroken to the Pacific Ocean. In that same year, in France, Louis Daguerre discovered a process by which permanent images could be preserved using only metal plates, chemicals, and the sun. This clearly written book illustrates how these two unknowns matured together. By 1890 the frontier no longer officially existed, and photography had become an integral part of the American life-style. In a sense, one could not have grown without the other. The frontier required the sharp images of Daguerre's "pencil of nature" to capture and hold the fancy of those who would ultimately conquer it. Photography, on the other hand, benefited through technical and artistic development from the unique challenges provided by this new territory. Indeed, when William Henry Jackson, the greatest of pioneer photographers, was given, for his ninetieth birthday, a one-pound Leica capable of producing photographs of myriad size and variety, he ruefully remarked, "This little thing makes a sport of our labors." He had a point. The pioneer photographers discussed here endured difficulties almost impossible to conceive in this Instamatic age. Equipment weighinghundreds of pounds was transported by mules across unexplored wilderness. Chemicals and cameras were incredibly sensitive to variations in climate and handling. The photographers themselves were isolated not only from intimates but also from most of their colleagues.

THOMAS

HOOBLER.

And, the field was not generally a lucrative one, requiring unrewarding years of work with no guaranteed return. Nevertheless, the personalities attracted to photography had their share of dramatic appeal. From Eadweard Muybridge, acquitted of the murder of his wife's lover on the grounds of insanity, to numerous others with demonstrated weaknesses for drink, self-destruction, or at the very least, poor money management, these photographers were a colorful group. Ridgeway Glover, who took early pictures of Indians, wrote from Fort Phil Kearney in 1866, "I am surrounded by beautiful scenery, and hemmed in by yelling savages, who are surprising and killing someone every day. I expect to get some good pictures here." Stereo cards were the mainstay of the photographer's income. These threedimensional slides seen through a stereoscopic viewer enjoyed enormous popularity for several decades. In fact, the stereos served one of the primary goals of pioneer photographyâ&#x20AC;&#x201D;that of satisfying an immense hunger for views of the West. Any kind of picture, from scenery to Indians to railroads to miners, found a receptive audience. Almost every photographer therefore devoted a large portion of his efforts to stereo cards. But although the stereo views were the bread and butter of the business, the frontier required the larger view also. Photographers such as Jackson, Carleton Watkins, Timothy O'Sullivan,

208 and others searched for those majestic views t h a t captured the wonder of this new world. O'Sullivan's picture of his photography wagon a n d mules standing "as if a b a n d o n e d " in the middle of the sand dunes n e a r Carson Sink, Nevada, is one of his m a n y works of art. Others showed, for the first time, the miracles of Yellowstone a n d Yosemite, the unique spirit of the American Indian, the monumental achievements of the transcontinental railroad, a n d the daily struggles of a variety of new settlers in new environments. Besides satisfying the thirst for views, the photographers acted as molders of public opinion. Yellowstone became the first national park as a result of a portfolio of Jackson photos submitted to Congress by F e r d i n a n d Hayden, head of the government survey of the Yellowstone region. Less admirable was the use of the camera to determine public sentiment toward the I n d i a n — a s when Indians were costumed by t h e photographer to fit their public image and in

Utah Historical Quarterly pictures such as one taken in 1867 by William S. Soule of a scalped sheepherder lying dead near Fort Dodge. Most important, from a m o d e r n point of view, the pioneer photographer left a record of h o w it was. T h e frontier is gone, but a fragment of the image remains to remind this infinitely more complex era of its beginnings. T h e Hooblers have discussed approximately 150 photographers in their book. Coverage ranges from one sentence (for J u l i a Sansom, one of only a few early women photographers) to twenty pages for William H e n r y Jackson. It is not really a picture book, containing only fifty representative photogaphs. I t is a clear and concise survey of a n increasingly p o p u l a r area of study. I t has been catalogued as a juvenile book, a fact that in no way inhibits its usefulness to those interested in a good reference to and survey of early western photographers A N N H I N C K L E Y COSTELLO

Walla Walla,

Washington

Movable Type: The Biography of Legh R. Freeman. By T H O M A S H . H E U T E R M A N . (Ames: Iowa State University Press, 1979. X + 172 p p . $11.50.) I don't think—after reading T h o m a s H e u t e r m a n ' s biography of Legh R. F r e e m a n — t h a t I ' d like to be the editorial writer on any of Freeman's m a n y publications. N o t that he h a d anyone writing editorials except himself, unless he was off gadding a n d left the publication to his wife or brother. H e did 'em all himself—frequently with a poison pen. R a t h e r , w h a t would perturb m e would be Freeman's m a n y changes of mood. O n e day he'd be for the R e publicans. Next day he'd be against. While publishing the Freeman in Ogden, U t a h , he began by praising the Mormons. T h e n , bingo! H e was against the L D S church a n d all it stood for. H e was for law and order. But when things didn't go his way he'd take after public officials. A case in point occurred in 1878 when he criticized the U . S . com-

missioner, t h e U . S . marshal, a n d the O g d e n postmaster. Things got so bad t h a t he a n d the postmaster exchanged blows on the street; F r e e m a n was fined $30, Postmaster Sharp $40. W h a t I like about T h o m a s Heuterm a n ' s Movable Type is t h a t he, like roving editor Legh (pronounced Lee) Freem a n , pulls no punches in his writing. W i t h admiration, he narrates important contributions F r e e m a n m a d e from the start of the Frontier Index in Fort Kearney, Nebraska Territory, until h e folded his last farmers publication in Yakima, Washington, where he died in 1914. T h e a u t h o r shows his disgust, too, at Freeman's p e n c h a n t for r u n n i n g u p unpaid bills, shifting sides, a n d going to court—as a plaintiff or defendant—at the d r o p of a summons. H e u t e r m a n admits t h a t Freeman failed as a father,

209

Book 'Reviews and Notices too, since all his children left home as soon as they could. He shows sympathy for Freeman's three wives—one at a time—who helped publish his papers while putting up with what was obviously a giant, hair-triggered temper. Quotations are abundant—representing months and months of research— from the "hell on wheels" railroad camp newspapers across Nebraska and Wyoming, in Ogden and Butte, and finally to Freeman's last publications in Washington. Heuterman's generous footnotes are located in the back of the book where I

personally like to see them. His bibliography is extensive and intriguing. His index is complete. And the typography and printing by the Iowa State University Press are excellent. I know from frustrating experience that good books on early Utah newsmen are scarce, leaving major gaps in our state's journalistic history. Thomas Heuterman's Movable Type fills one of those holes well.

MURRAY M.

Ogden Standard

The Apaches: Eagles of the Southwest. By DONALD E. WORCESTER. University of Oklahoma Press, 1979. Xviii + 389 pp. $15.95.) A lengthy book by a well-known historian on an important topic published by an outstanding university press turns out to be a major disappointment. What could have been a much-needed analytical synthesis of the history of relationships between various groups of Apaches and non-Indians in the Mexican-American West turns out instead to be just another "Apache wars" book. It is a fairly superficial and often confusing recapitulation of events in Apache-white conflicts from the sixteenth century to the 1970s, with dreary emphasis on the thirty-five years between 1851 and 1886. Virtually all the bibliographical sources are secondary ; they are of very uneven quality. One, The First Hundred Years of Nino Cochise (1971), has absolutely no claim to veracity. Since the classic works on the social and political organizations of the Western Apaches and Chiricahuas continue to be those by Grenville Goodwin (Social Organization of the Western Apache) and Morris Opler (An Apache Life-way)—and both have done a masterful job of untangling the confusion in nomenclature of various groups, bands, and semibands—it is impossible to see how it is "less confusing" to use

MOLER

Examiner

(Norman:

names that are ambiguous at best (p. 5). But the author does so, and the reader is asked to skip around from Mescaleros to Mimbrefios to Jicarillas to Tontos and to Nednhi as if these distinctions were not really all that important. They were. Anyone who understands that aboriginal Mescalero, Jicarilla, Chiricahua and Western Apache lands encompassed the best-timbered and finest watershed acreage in Arizona and much of New Mexico will wonder about their characterization as "marginal, undesireable lands" (p. xv). Purple is the prose that reads: "Harsh was the land called Apacheria . . . where every insect had its sting, every bush its thorns, every snake its fangs" (p. 3 ) . This same "hostile environment" is where today skiing, fishing, hunting, boating, camping, backpacking, lumbering, and cattle raising are among the key industries of the four major Apache reservations in the Southwest (they build race cars on the tiny Tonto Reservation in Arizona). The Apaches is sprinkled with errors, both big and small, typographical and otherwise. Where were the editors? Apaches are accused of having destroyed the southern Sinaloa sea town of Maza-

210 tlan in 1851, when the place was actually the dusty desert village of Mazatlan in central Sonora (p. 53). Establecimientos de paz surely were not the "forerunners" of the modern reservation (p. 25). The reservationlike institutions of mision, reduccion, and conversion are earlier; and in any event the reservation system in the United States grew out of Anglo-American rather than Latin American tradition and history. We need to lay to rest forever the notion that Mescaleros or other Apaches now living in Arizona and New Mexico ever had treaties or treaty guarantees with

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the United States (pp. 340, 346). In these two states only the Navajos have such a treaty. Arivaipa means "little well" or "little spring" in Piman and not "girls" (p. 33). And so forth. In short, The Apaches is sorely lacking in original research or in fresh approaches to well-known information. Regretfully, it represents old ground replowed to shallow depths and in crooked lines. The harvest is less than a bumper crop. BERNARD L. FONTANA

University of Arizona

Greene & Greene: Furniture and Related Designs. By RANDELL L. MAKINSON. (Santa Barbara and Salt Lake City: Peregrine Smith, Inc., 1979. 161 pp. $27.95.) This is one of several impressive books on American art and architecture published in the last few years by Utahbased publisher Peregrine Smith. It provides a companion volume to an earlier work (1977) by the same author, Greene & Greene: Architecture as a Fine Art. Together, the books document the careers of Charles and Henry Greene of Pasadena, California, two> of the most remarkable and creative American architects/designers of the early twentieth century. This second volume focuses on the furniture, leaded glass, lighting fixtures, and other accessories they designed. It is copiously illustrated with drawings and photographs of exquisite objects beautifully arranged. The eight pages of full color pictures in the center section are particularly striking, illustrating the rich materials and simple, elegant lines that typified the work of these talented brothers. As a longtime admirer of Greene and Greene, I was particularly pleased to see this volume. I grew up in Pasadena where the graceful shingle-covered houses of the Greene brothers and their many imitators were as much a part of the landscape as the palm trees. Predictably, Pasadena took this rich artistic legacy so much for granted that

much of it disappeared before it was properly appreciated. In recent years, however, interest and pride in these buildings have grown among scholars and local residents. The handsome Gamble House of 1908, one of the "ultimate bungalows" built by the Greenes on the hillside above the Rose Bowl, has become a National Historic Landmark open to the public, containing most of its original furnishings and housing the Greene and Greene Library. Now, Makinson, the curator of the Gamble House, has given us in these two books the definitive catalogues of the Greenes' work. In twenty-five years of research, he has collected their drawings and photographs, interviewed their families and those of their clients and associates, and, with Marvin Rand, photographed much of their remaining architecture and furniture. The books contain convincing evidence that the work of Greene and Greene was in the same class with the work of such contemporary master designers as Gustav Stickley, Louis Comfort Tiffany, and Frank Lloyd Wright. This second volume traces the sources and evolution of the Greene brothers' designs for furniture and accessories in considerable detail. Like Wright and

Book Reviews and Notices others of the same generation, they worked toward a concept of "total design," the careful integration of architecture, furnishings, accessories, landscaping, and decorative embellishments. Readers not familiar with Greene and Greene might do well to look first at the earlier volume on their architecture, since many furniture pieces were designed to match the details and materials of the interior woodwork of particular houses. The Greenes' work was based on the principles of the Arts and Crafts Movement, i.e., "that design stemmed from function and form from the materials and tools used" rather than from imitation of historical styles. The author shows how their early work, similar to the simple, solid oak furniture of Gustav Stickley, evolved into a lighter, more graceful, and personal style. Much of their best work exhibited an incredibly high degree of craftsmanship and finish, including such refinements as the use of rhythmic patterns of small square ebony pegs to conceal the screws holding the wood members together. Some earlier pieces showed the influence of Chinese household furniture in the subtle curves and shaping of the separate elements, while later furniture included rich inlays and more decorative carving, some with a distinctly Spanish flavor. One of the author's important points is that much of the Greenes' best work resulted from cooperation with skilled artisans and sensitive clients. Peter and John Hall, Pasadena woodcraftsmen and contractors, provided woodworking skills that met the Greenes' very high standards. Without their well-equipped cabinet shop and trained personnel, much of the furniture simply could not have been built. Similarly, Emil Lange, a glass artisan trained in Tiffany's New York studio, had the technical background to construct the Greenes' unusual decorative windows, light fixtures, and other glass work. The author right-

211 ly acknowledges the essential role of clients who were willing to trust the Greenes and to pay for the superb results. Some selected correspondence also shows the other side: the architects' frustration when clients did not approve some of their later work and the clients' frustration at delays in delivery and bills far in excess of their expectations. The books concludes with two chapters summarizing the separate careers of the brothers after Charles moved to Carmel in 1916, showing how their work changed when it was produced more independently. In a book like this that promises to be definitive for many years to come, it is natural for the reader to expect excellence in every way. The design of the book is very handsome indeed, the paper is of good quality, and the illustrations are beautiful and well chosen. The writing and editing, however, are less satisfactory. Although most of the text is carefully researched and adequately written, it is not eloquent or particularly insightful. There are some irritatingly convoluted sentences in crucial places and even a few grammatical errors. An even more serious problem and annoyance is the lack of references in the text to the illustrations. I often found myself flipping a few pages to see if an object described in the text was illustrated at all, and I did not find the colored illustrations in the center section until long after finishing several related passages. Because of these persistent distractions, some readers may find the text too frustrating to finish. I was also disappointed to find a few illustrations in the front and back of the book that are not even identified. It would have been nice to have seen more color pictures, but I suppose there is a limit to the price that can be charged for so slender a volume. Perhaps these serious textual problems will be minor flaws to most people who

212 buy the book. The facts are certainly there for those with patience enough to ferret them out, but most readers will look first at the pictures and it is to the pictures that they will return again and again. These illustrations present a vision of the beauty in every-

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day objects that can result when clients of sensitivity and means come together, even briefly, with artists and artisans of genius. PAUL L. ANDERSON

Salt Lake City

Hard Rock Epic:

Western Miners and the Industrial Revolution, 1860-1910. By (Berkeley and Los Angeles: University of California Press, 1979. X + 331 pp. $15.95.) M A R K WYMAN.

As surface gold and silver deposits became more difficult to find and as placer mining consequently declined, the search for precious metals moved deeper into the hard rock of the earth's surface. Mining then became more difficult, labor intensive, expensive, and dangerous. Focusing upon the period from 1860 to 1910, this carefully researched volume seeks to assess the changes wrought in the life of western miners as new technologies were introduced, as the labor force became more specialized, and as eastern and European capital were employed. Although the author is demonstrably conversant with all aspects of this subject, his fundamental theme is interaction of the miner with his workplace, the mine, and his employer, the mine owner in Montana, Utah, Colorado, Idaho, and Nevada. Successful lode mining required the application of steam technology, a major gift of the Industrial Revolution. Western mines quickly adapted massive steam engines for their mining, milling, and smelting operations. As the capital requirements of this new technology often exhausted local resources, money began to be sought from the East and Europe. T h e subsequent absentee ownership of mines frequently created conditions that polarized relations between employer and employee. As more and more capital was invested, the desire for greater productivity increased. This

productivity was usually gained at the miner's expense. The health hazards of the deeper mines were immediate and obviousâ&#x20AC;&#x201D;unexpected explosions, cage accidents, cave-ins, foul air, poor sanitation, shaft accidents, electrocutions, dynamite accidents, and phthisis (silicosis ). Given the nature of their work, the miners maintained that their wages were low, their hours long, and their work hazardous. The reluctance of mine owners to improve the situation encouraged the miners to organize to obtain higher wages, safety procedures, an eight-hour day, and workmen's compensation. When frustrated in their attempt to obtain these changes through the extant political structures, they flirted briefly with a radicalism that would alter the nation's political and economic structures. Wyman effectively chronicles the role of the Knights of Labor and the Western Federation of Miners in seeking these changes as well as the intriguing relationship between the W F M and the Industrial Workers of the World. Based upon a thorough examination of primary and secondary materials, this study is an excellent addition to the growing literature on western mining.

PHILLIP D R E N N O N T H O M A S

Wichita State

University

213

Book Reviews and Notices

Beltran: Basque Sheepman of the American West. By BELTRAN PARIS as told to WILLIAM A. DOUGLASS. (Reno: University of Nevada Press, 1979. Xviii + 186 pp. $10.00.) This small but delightful book is recommended on its interest value alone. However, as part of the University of Nevada Press Basque Series, edited by Professor Douglass, and as a genre of Basque folk life literature, it is outstanding. Fortunately Douglass brings to the work not only a clear comprehension of Nevada's sheep industry, but more particularly a keen insight into the Basques in America, their life-style and cultural heritage. Though numerically a small minority, their imprint on the American West has been significant and their contributions to Nevada and to the sheep industry profound. Douglass brings us this fascinating story gleaned from interviews and contacts with Beltran Paris on his Nevada ranches over more than a decade. Beltran Paris's is not the typical Basque story. Yet he passes through each of those steps to successâ&#x20AC;&#x201D;a cultural heritage of hard work and ambition; a dream that "Somehow I thought I could do better," namely: buying shoes for his own children, going to America, herding sheep, breaching the language barrier, experiencing hard work and loneliness, gaining entrepreneurship; and, finally, being absorbed into the American sheep ranching scene with its herds and debts, bankers and struggles for range, depressions, predators, and government regulation. Beltran is a superb storyteller. His eight and one-half decades of experience make him a valuable resource for in-

formation about sheep ranching, the Taylor Grazing Act, the depression, the blizzards of 1948-49, and the life and values of the Basque people. Two samples illustrate these points. As a young sheepherder newly arrived in Wyoming, he comments: Staying all alone was awfully hard, especially at night. I wasn't used to sleeping outside a n d the stars and moonlight kept me awake. Sometimes I took a little siesta in the daytime, too, and then at night I wasn't tired. I would lie there looking u p at the sky, the hours went slowly and then I was lonesome. Some guys cried when they were like that, but I d o n ' t remember crying.

About the big blizzard he states: T h e wind was blowing h a r d and everything was so white they couldn't even see the hills. W h e n they got to the middle of the flat they saw a little black object moving along. After awhile they saw it was a m a n on horseback. H e kept coming a n d coming, but he d i d n ' t see them and h e was going to pass right on by, maybe half a mile away. I t was John U h a l d e a n d he was h e a d i n g for his ranch to see w h a t was happening. Those boys were worried a n d scared traveling together a n d with pack horses a n d there was old J o h n U h a l d e , almost seventy years old, riding t h a t country all by himself.

The book is well bound and very readable. Douglass's footnoting contributes important facts as needed. There is no index. However, the general reader will find the book fascinating. Students of the twentieth-century American West, the sheep industry in Nevada, and especially the Basque people will want to examine it with care. MELVIN T. SMITH

Utah State Historical Society

The Lemhi: Sacajawea's People. By BRIGHAM D. Printers, 1979. 214 pp. Paper, $4.95.) This is an attractive, significant book. There are ample maps, pictures, footnotes, and appendices. The bibliography is so selective, however, that I inquired

MADSEN.

(Caldwell, Ida.: Caxton

and learned that the monograph was written in support of Lemhi Indian claims. The book's title links the non-Indian

214 name, Lemhi, with that of the most notable western Indian woman, Sacajawea, a Shoshoni. The table of contents includes a fine capsule history by Dr. Madsen of the Lemhi, from their 1805 contact with Captain Meriwether Lewis in the homeland to their removal to the Fort Hall Reservation in 1907. Merle W. Wells, an Idaho historian, wrote an extensive introduction concerning the anthropological background of the Shoshoni tribe and its branches. This account is based upon the superb research and writing of Professors Sven Liljeblad and Earl H. Swanson. Dr. Madsen's five chapters disclose the salient points in a century of the Lemhi's generally peaceful and neighborly relationship with the whites. Their central eastern Idaho and western Montana homeland was successively invaded by fur traders, Mormon missionaries, miners, and farmers. The vocations and life-styles of these people inspired no emulation. They clung to their precarious fishing and hunting economy. Aware of the Lemhi's forlorn status, federal and state officials urged them to move to the Bannock-Shoshoni Reservation at Fort Hall. Their refusal was adamant, a position condoned by many of their white neighbors. I n 1875 the Lemhis were partially pacified by a tiny one hundred square mile reser-

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vation. It was not a viable resource for the well-being of approximately a thousand people with no farming experience. Dr. Madsen's contribution to their history lies in his thoroughly documented thesis that this was shabby compensation for their homeland and a peaceful record. Furthermore, the Indian Bureau's management of Lemhi affairs under a half-dozen agents was uniformly underfunded and shortsighted. Lack of livestock, machinery, arable land, and proper direction made progress all but impossible. Short rations forced attempts, mostly futile, to hunt bison. Complaints that hunger was persistent caused one agent to declare that "an Indian's belly was his God." Accordingly, the tone of this book is somber. David L. Crowder's Tendoy, Chief of the Lemhis, published in 1969, contains interesting characterizations and anecdotes and has a comprehensive bibliography. Dr. Madsen's sources basically consist of government reports. There is an average of forty footnotes per chapter. These facts, coupled with the latter's meticulous analysis and evaluation, impells this reviewer to affirm that The Lemhi: Sacajawea's People is essentially a historian's history. MERRILL D. BEAL

Idaho State

University

M The

Mormon

Tabernacle

Choir.

JEFFREY CALMAN and WILLIAM I. KAUFMAN. (New York: Harper &

Row, 1979. Xvii + 203 pp. $14.95.) Unlike many cults and religions originating in the nineteenth century, Mormons never considered music or dance to be the handicraft of the devil. Brigham Young himself believed that "any musical sound that can be made belongs to the Saints and is for the Saints." Jeffrey Caiman traces the history of the choir from its founding only twentynine days after the pioneers entered Salt Lake Valley. During their first trip east in 1893, Caiman tells us, choir members were given a list of do's and don't's so easterners would not think Mormons were rubes and hicks. One of these dicta was how to eat French-fried potatoes: "Cut in half with the fork, if necessaryâ&#x20AC;&#x201D;then eat with fork, not fingers. I know, I know; but it's the way it's done."

Chief Lawyer 1796-1876. (Glendale, Company,

of the Nez Perce Indians, By CLIFFORD M. DRURY. Calif.: Arthur H. Clark 1979. 304 pp.)

Despite the confusing title, this is not the story of a Harvard Law School graduate who headed west to become the main legal counsel of the Nez Perce. It is the biography of the Nez Perce warrior Hol-lol-sote-tote, nicknamed "Lawyer" by whites. Hol-lol-sote-tote was head chief of the Nez Perce for over twentyfive years.

The Western Writings of Stephen Crane. Edited by FRANK BERGON. (New York: New American Library, 1979. Vi 4- 230 pp. Paper, $1.95.) The author of The Red Badge of Courage came west in 1895, before the birth of the modern western as a distinctively American fictional genre. The stories Crane wrote are exceptional in many ways, and the editor's fine introduction illuminates Crane's contribution to the literature of the West and sets it apart from the many stereotyped images that followed, images that still affect, and at times distort, our perception of the historical West.

Love-Magic and Butterfly People: The Slim Curly Version of the Ajilee and Mothway Myths. By BERARD HAILE. (Flagstaff: Museum1 of Northern Arizona Presss, 1978. Xi 4- 172 pp. $13.95.) A Navajo Bringing-Home The Claus Chee Sonny

Ceremony: Version of

Deerway Ajilee. By KARL W. L U C K -

ERT. (Flagstaff: Museum of Northern Arizona Press. 1978. Xiv + 208 pp. $14.95.) These two paperbacks are the second and third volumes of the Museum of Northern Arizona's American Tribal Religions series. Ajilee is an extinct and defamed Navajo healing ceremony lasting five days. It was meant to cure sex frenzy caused by hallucinogenic plants, disorientation, and wandering.

Utah Historical

216 Readings in American by

JAN

Folklore. Edited

HAROLD BRUNVAND.

(New-

York: W. W. Norton and Company, 1979. Xii 4- 466 pp. $8.95.) J a n Brunvand, professor of English at the University of Utah, has collected a number of excellent articles on American folklore, one of which was originally presented at the Twentieth Annual Meeting of the Utah State Historical Society. Although this book was probably intended as a textbook for an American folklore class, the general reader will find many of the articles light, amusing entertainment.

200 Years in Nevada: A Story of People Who Opened, Explored, and Developed the Land. By ELBERT B. E D WARDS. (Las Vegas: Author, 1978. Xii 4-401 pp. $24.95.) A good, grey history of Nevada whose virtues, like those of the state, belie its bleak appearance. In spite of a stodgy textbook format, some poorly reproduced photographs and dismally executed pen sketches of Nevada personalities, the book succeeds in providing a fast-paced and admirably comprehensive history of the state. A few leaden and lengthy quotes do not seriously affect readability, and an occasional typo enlivens the text: some readers will be surprised to learn that Eureka is a center for "lovestock production."

A Guide to the William Carey Brown Papers. Compiled by DORIS MITTERLING. Edited by J O H N A. BRENNAN. (Boulder: Western Historical Collections, University of Colorado, 1978. Vii 4- 141 pp. $5.00.) William Carey Brown, a graduate of West Point, served in the U.S. Army from 1877 to 1918, thereby having both Arthur and Douglas MacArthur as his

Quarterly

commanding general. The University of Colorado Library's guide can serve as a model for other libraries attempting to catalog their holdings on a limited budget. The Power of Adversity. By REED FARNSWORTH. (n.p.: Author, 1979. Xii + 215 pp.) The autobiography of a prominent Cedar City physician, this work also contains short historical articles on southern Utah, one of which details wine-making by Swiss immigrants. The Philosophical Foundations of Mormon Theology. By STERLING M. M C M U R R I N . (Reprint ed.; Salt Lake City: University of Utah Press, 1979. 31 pp. Paper, $4.00.) A work of such solid scholarship and relevance as The Philosophical Foundations of Mormon Theology (1959) deserves to be reprinted two decades later. Sterling M. McMurrin, in the context of western philosophical concepts, skillfully reviews Mormon theology, noting its exceptional and unusual qualities. Even though some of his references to accepted Mormon beliefs or sources for authority may be slightly dated after twenty years, his lucid discussion remains the best work on the topic.

The Origin and Growth of Utah Masonry and Its Conflict with Mormonism. By MERVIN B. HOGAN. (Salt Lake City: Campus Graphics, 1978. 120 pp. Paper, $4.75.) Strident and free swinging, this jeremiad denounces Masonry in Utah as a spurious Masonry, one that has been "militantly, aggressively and ceaselessly anti-Mormon." Uninvitingly packaged, it is burdened with long and tedious quotations and printed in reduced typewriter type.

UTAH STATE HISTORICAL SOCIETY Department of Community and Economic Development Division of State History BOARD O F STATE HISTORY M I L T O N C. A B R A M S , Smithfield, 1981

President D E L L O G. D A Y T O N , O g d e n , 1983

Vice President M E L V I N T . S M I T H , Salt Lake City Secretary T H O M A S G. A L E X A N D E R , Provo, 1983 MRS.

E L I Z A B E T H G R I F F I T H , O g d e n , 1981

W A Y N E K . H I N T O N , C e d a r City, 1981 T H E R O N L U K E , Provo, 1983

DAVID S. M O N S O N , L i e u t e n a n t G o v e r n o r /

Secretary of State, Ex officio M R S . E L I Z A B E T H M O N T A G U E , Salt Lake City, 1983 WILLIAM D . O W E N S , Salt Lake City, 1983 M R S . H E L E N Z. PAPANIKOLAS, Salt Lake City, 1981 T E D J . W A R N E R , Provo, 1981

ADMINISTRATION MELVIN T. SMITH,

Director

STANFORD J . L A Y T O N , Managing Editor J A Y M . H A Y M O N D , Librarian DAVID B. M A D S E N , State Archaeologist

A. K E N T P O W E L L , Historic Preservation W I L S O N G. M A R T I N , Historic Preservation

Research Development

T h e U t a h State Historical Society was organized in 1897 by public-spirited U t a h n s to collect, preserve, and publish U t a h and related history. Today, u n d e r state sponsorship, the Society fulfills its obligations by publishing the Utah Historical Quarterly a n d other historical materials; locating, documenting, a n d preserving historic a n d prehistoric buildings a n d sites; and maintaining a specialized research library. Donations a n d gifts to the Society's programs or its library are encouraged, for only through such means can it live u p to its responsibility of preserving the record of U t a h ' s past.

MEMBERSHIP Membership in the U t a h State Historical Society is open to all individuals a n d institutions interested in U t a h history. Membership applications and change of address notices should be sent to the membership secretary. Annual dues a r e : Individual, $7.50: institution, $10.00; student, $5.00 (with teacher's statement) ; contributing, $15.00; sustaining, $25.00; patron, $50.00; life member, $150.00. Your interest and support are most welcome.

Utah Historical Quarterly, Volume 48, Number 2, 1980

Articles inside

Millard Fillmore, Utah's Friend in the White House

Justice for All or for the "Elect"? The Utah County Probate Court, 1855-72

"Good Guys" vs. "Good Guys": Rudger Clawson, John Sharp, and Civil Disobedience in Nineteenth century Utah

Utah's Experience with the Desert Land Act

A. Ray Olpin and the Postwar Emergency at the University of Utah