After the Mormons began to leave their temporary settlements on the Missouri in 1847 to settle in Utah, three key events marked Thomas L. Kane’s experience with the problems of the Mormons in national politics: (1) the Mormons’ quest for statehood or territorial organization in 1849 and 1850; (2) the dispute over federally appointed officials in 1851 and 1852; and (3) the conflicts created by the judicial administration of James B. McKean in the early 1870s. This essay will explore these instances in which Kane assisted the Mormons and the people of Utah in their dealings with the federal government.
The National Scene
To understand how Thomas L. Kane helped the Mormons navigate the rough terrain of national politics, it is necessary to consider the context of American politics and society during the second half of the nineteenth century. Whether slavery should expand into the areas of the Louisiana Purchase and the Mexican Cession was an issue that divided Americans during the 1840s and 1850s. This division can be seen in the political parties of the era. The Democratic Party split into free soil and proslavery Democrats, and the Whigs split into conscience Whigs and proslavery Whigs. In 1848 a significant number of Democrats, including Kane, left the Democratic Party to support the Free Soil Party, which opposed the expansion of slavery into the territories.
By 1856 the Whig Party had died, and in its wake the Republican Party had arisen. The Republicans strongly opposed slavery in the territories and considered slavery and polygamy to be the “twin relics of barbarism.” They hoped to eventually eradicate both, although at times they hedged on slavery in the states. Beginning with Abraham Lincoln’s election in 1860, the Republican Party, with its decidedly anti-Mormon agenda, controlled the presidency and a closely divided Congress during most of the remainder of the nineteenth century.Under this political system, Thomas L. Kane worked to influence the administration and Congress to treat his friends in Utah justly.
Although Mormons would have preferred to remain aloof from the controversies surrounding slavery and polygamy, after 1856 they could not do so. Under the United States system of dual sovereignty, the states have jurisdiction over such matters as qualifications for marriage, voters, and candidates for offices. Territories, as creatures of the federal government, however, do not enjoy the benefits of dual sovereignty. The federal government considers them colonies preparing for statehood. The president selects the territories’ principal executive and judicial officers with Senate approval, and Congress may legislate for the territories as long as it protects individual rights guaranteed by the Constitution as interpreted by the Supreme Court. Territories do elect members of their legislature, city and county officers, and a delegate to Congress. The delegate can introduce legislation, speak on the floor of the House, and vote in committee. However, this person may not vote on the floor of the House. Working within the realities of American politics, Kane took up the Mormon cause, he tried to convince the administration and Congress to treat his friends in Utah fairly.
Quest for Statehood
Between July 1847, when the first Mormon settlers arrived in the region that would later become Utah, and September 1850, when Congress organized Utah Territory, the Latter-day Saints ruled the region with a provisional government as the State of Deseret.
The Mormon quest for statehood officially began in 1849, though Kane had offered advice on the matter as early as April 1847.In March 1849, the leadership in Utah drafted a constitution for what they called the State of Deseret. After the public approved the constitution, the leaders sent two men to Washington to lobby for authorization of either a territorial or a state government. Dr. John M. Bernhisel (fig. 1), a physician of conservative disposition, left for the east on May 3. Almon Whiting Babbitt (fig. 2), a local attorney who often did not seem to understand whom he represented, went east as the designated representative of the State of Deseret on July 27.
Although Bernhisel carried a letter of introduction from the First Presidency of the Church to Senator Stephen A. Douglas of Illinois, who had previously aided the Mormons, Bernhisel and Mormon leader Elder Wilford Woodruff (fig. 3) met instead with Kane in Philadelphia on November 26, 1849. The purpose of the meeting was to plan for the campaign to legalize either a state or a territory. Kane told them that at Brigham Young’s request, he had already applied to President James K. Polk for territorial government, but he had withdrawn the territorial petition on his “own discretion” after Polk told him that he did not favor the Mormons and that he would appoint outsiders to the territorial offices.
However, Polk was now no longer in office, having turned the administration over to Zachary Taylor (fig. 4) and Millard Fillmore (fig. 5) on March 4, 1849. Kane offered Bernhisel and Woodruff tactical advice in dealing with the various politicians in their attempt to secure state or territorial government, urging the Mormons to take a neutral stand on the divisive slavery question. Kane also urged them not to align themselves with either party and promised that he would work with the Free Soil Party and that he would have his father, John K. Kane, and his friend George M. Dallas (fig. 6), the former vice president, work with the Democratic Party. Kane pointed out that Mormons could count as “enemies” to Senators David R. Atchison and Thomas Hart Benton of Missouri, and intimated that the Mormons could expect little help from Illinois Senator Stephen A. Douglas (fig. 7), then serving as chair of the Senate Committee on Territories.
Woodruff met again with Kane on December 4. Kane told Woodruff that Utahns would be better off “without any Government from the hands of Congress than [with] a Territorial Government. . . . You do not want,” he said,
Corrupt Political men from Washington strutting around you with military . . . dress. . . . You do not want two Governments with you. You have a Government now which is firm & Powerful and You are under no obligations to the United States. . . . Brigham Young should be your Govornor. . . . He has power to see through men & things. . . . [Under his leadership all associates will] work for the general good in all things and not act from selfish motives or to get some Petty office or a little salary.
On the other hand, Kane suggested, if the people of Utah “did make up [their] minds to ask for a Territory [they] should use every exhertion in [their] power to get the assureance of the President that [their] Choice should be granted [them] in a Govornor & other officers.” If they could not secure such a promise, he recommended that they not ask for territorial organization, but await “the result.”
Citing his frequent bouts of ill health, Kane told Woodruff he might not be able to continue to work as much as previously for the Mormons. Woodruff told him he would “Pray for his success in our behalf” and “also for his health strength & prosperity.” Impressed with Kane’s “wisdom,” Woodruff wrote that he believed that the Pennsylvanian held “right views of things in General.” After Woodruff returned to Utah in fall 1850, he read the entries from his journal of conversations with Kane to the Church’s First Presidency and Quorum of the Twelve, as Kane had requested.
Kane and Bernhisel continued to lobby Congress and the administration. By mid-January 1850, a perceptive Bernhisel understood that Congress would most likely not admit Deseret-Utah as a state, though Whig Senator Truman Smith (fig. 8) of Connecticut encouraged Bernhisel to believe, at first, that Congress might authorize Utahns to elect their own territorial officers. By this time, President Taylor had begun floating the idea of organizing California as a monster state (covering present-day California, Nevada, and Utah) that might be divided later. After assessing the situation, Bernhisel understood that Congress would not act until mid-to-late summer, at the earliest, on the application for statehood.
Meanwhile, Almon W. Babbitt was managing to make a nuisance of himself, and neither Bernhisel nor Kane had much confidence in Babbitt’s judgment or character. Kane said Babbitt lacked “wisdom, prudence and discretion.”Bernhisel witnessed such failings in Babbitt in an incident that took place early in 1850. By January a rumor had circulated that President Taylor would veto any bill “for the benefit of the Mormons.” Imprudent as usual, Babbitt told Bernhisel that Fitz Henry Warren, the First Assistant Postmaster General, had made an appointment to introduce Babbitt to the president on January 11. Before the visit, Babbitt told Bernhisel he would ask the president if the rumor was true. If Taylor said yes, Babbitt would reply, “We might as well abandon our application for a government.” Bernhisel urged Babbitt not to say anything to the president on the subject of state or territorial government.
On the day after Babbitt’s visit with Taylor, Bernhisel met with Babbitt again. Having ignored Bernhisel’s advice, Babbitt and Warren had spoken with the president on the matter. Taylor had responded by commenting on “the absurdity of the Mormons asking for a State or Territorial government.” Upset with Babbitt’s lack of judgment, Bernhisel urged him again to remain quiet on the subject, telling him he would “entirely blast our prospects here” if he did not. Babbitt promised to drop the subject, and he asked Warren to do the same.Nevertheless, in his message to Congress on January 21, 1850, President Taylor urged delay in the organization of Utah territory.
By early March, Bernhisel had concluded they could not “get such a form of government, as will authorize us to choose our own officers.” Under the circumstances, Bernhisel agreed with Kane that they “had better continue [their] provisional government.” Under such a government, they could “enjoy peace and quiet, until [their] population” had grown large enough “to entitle [them] to admission . . . as a State.”Acting on Kane’s advice, Bernhisel tried to induce Stephen Douglas to withdraw the application for territorial status. Unmoved by his attempt, Douglas told Bernhisel that Congress had a “duty to organize the territories” and that Congress and the nation could not settle the slavery question “until the territories were organized.” These comments undoubtedly reflected Douglas’s views that adopting popular sovereignty in the territories would solve the slavery issue.
By late March 1850, Bernhisel had been left on his own to try to influence Congress to meet the Utahns’ needs. Babbitt was visiting Nauvoo and Council Bluffs, and Kane had grown so ill that after he had delivered a lecture on the Mormons to the Historical Society of Pennsylvania on March 26, 1850, his physician ordered him to go to the West Indies for his health.Kane’s lecture and its publication in pamphlet form appeared at a crucial time during congressional consideration of Utah’s application for state or territorial government. The address provided such a positive treatment of the Mormons and their persecution that, although it did not soften Taylor’s resolve, it did help to shape public opinion in the Mormons’ favor.
Bernhisel secured the help of Senator Truman Smith, who tried to bypass Douglas’s Territorial Committee by inserting an amendment in an appropriation bill to legalize the State of Deseret. That failed, and Douglas introduced bills to organize Deseret Territory, which the senators renamed Utah, and New Mexico Territory. Douglas’s bill, amended in both the Senate and the House, languished until after President Taylor’s death on July 9, 1850. Thereafter it moved with deliberate speed through the two houses. The newly installed president, Millard Fillmore, who proved as well-disposed toward Utahns as they could realistically expect, signed the Utah Territorial Organic Act on September 9, 1850, as part of the multifaceted Compromise of 1850.
The Federal Appointees
Unfortunately, Kane’s prediction of the intense grief that Utahns would suffer with officials appointed from outside the territory proved all too accurate, as the relationship with the first set of officials demonstrated. On September 16, 1850, Bernhisel sent President Fillmore a list of men Utahns recommended as their territorial officials. These included Brigham Young as governor, Willard Richards (fig. 9) as territorial secretary, Zerubbabel Snow (fig. 10) as supreme court chief justice, Heber C. Kimball and Newel K. Whitney as associate justices, Seth M. Blair (fig. 11) as U.S. attorney for Utah, and Joseph L. Heywood (fig. 12) as U.S. marshal for Utah. In his letter submitting the recommendations, Bernhisel argued that Utahns had a “right, as American citizens, to be governed by men of their own choice, entitled to their confidence, and united with them in opinion and feeling.”
Babbitt successfully undercut Bernhisel’s argument and recommendations by sending his own recommendations to Secretary of State Daniel Webster (fig. 13) dated September 21, 1850, seven days before Fillmore sent his nominations to the Senate. Styling himself “Delegate from the Territory of Utah,” Babbitt provided a different list of candidates, which he may have discussed earlier with Webster and perhaps even with Fillmore. This discussion seems probable because, with one exception, the list coincided with the nominations Fillmore actually made. The exception was Henry R. Day of Missouri, whom Babbitt recommended as territorial secretary. Fillmore appointed Day as an Indian subagent rather than as secretary.
Following Babbitt’s and Bernhisel’s recommendations, Fillmore nominated Young as governor, Blair as attorney, and Heywood as marshal. Kimball (fig. 14) and Whitney (fig. 15) were rejected as justices, though this is understandable as neither was an attorney. From Babbitt’s list, Fillmore nominated Joseph Buffington of Pennsylvania as chief justice. When Buffington refused to serve, Fillmore nominated Lemuel G. Brandebury, whom Babbitt also had recommended. For the other associate justices, Fillmore followed Babbitt’s list and nominated Zerubbabel Snow of Ohio and Perry E. Brocchus (fig. 16) of Alabama. Instead of Richards or Day, Fillmore nominated Broughton D. Harris of Vermont as territorial secretary.
Utah’s first territorial chief justice, Lemuel G. Brandebury of Carlisle, Pennsylvania, arrived in Utah on June 7, 1851, earlier than any of the other appointees from outside the territory. Before accepting the judgeship in Utah, Brandebury had lobbied unsuccessfully for appointment as recorder of the General Land Office in Washington, D.C., and for a position in the Treasury Department solicitor’s office.In 1851, Pennsylvania friends campaigned for his appointment as chief justice of Utah Territory. Letters and petitions poured in from members of the Pennsylvania congressional delegation. Although Brandebury sent two letters to Fillmore withdrawing his application, the president nominated him on March 12, 1851. Congress confirmed the appointment, and despite his reluctance, Brandebury agreed to serve.
On August 17, Associate Justice Perry E. Brocchus, a Democrat from Alabama, arrived in Utah, the last of the outside appointees to reach Salt Lake City. He had practiced law in Alabama and served as a law clerk in the solicitor’s office in Washington, D.C. Beginning in 1847, the ambitious Brocchus had lobbied the Polk administration for appointment as a supreme court justice in both Minnesota and Oregon territories. He failed in his efforts to secure either appointment, and he did not apply for the Utah judgeship. Nevertheless, Fillmore appointed Brocchus on September 28, 1850, with the first judicial list.
Among the three justices appointed on the first list, only one, Zerubbabel Snow, was a Latter-day Saint. (Zerubbabel’s brother Erastus was a member of the Quorum of the Twelve.) Snow, a Democrat like Brocchus and Babbitt, had joined the Church in 1832. He lived in Ohio at the time of his appointment as an associate justice. Significantly, Snow’s file contains fewer letters of support than Brandebury’s and Brocchus’s.Interior Secretary Alexander H. H. Stuart wrote to Fillmore on the same day the president nominated Snow. Stuart repeated allegations from two clerks who said Snow was “a man of bad character, of no talent, and has always been a loco foco,” a pre–Civil War designation for a radical Democrat. Fillmore acted in spite of Stuart’s letter and did not rescind the nomination. Snow arrived in Salt Lake City on July 19, accompanied by Bernhisel and Babbitt. With them also came territorial secretary Broughton D. Harris and Indian agents Henry R. Day and Stephen B. Rose.
Brigham Young’s nomination as governor caused more of a stir. Young was recommended by Babbitt and Bernhisel and also had the endorsement of Kane, who spoke directly with Fillmore, defending Young from a number of unflattering newspaper attacks. Kane had recommended Kimball and Richards, and he had provided Fillmore with information “upon which to base his defence against . . . assailants” of the three. Kane also had written a confidential letter in support of Young that someone leaked in a garbled and uncomplimentary form to a newspaper.After a series of attacks and counterattacks appeared in party newspapers, Kane succeeded in blunting the effects of the assaults, convincing Fillmore to maintain the nomination. In his defense of Young and others, Kane also found it necessary to mount a rearguard action in the press against Babbitt’s “improper conduct and [to disavow] his improper associations,” presumably for fear he would undermine the nomination.
Flight of the Runaways
After the flurry of disputes over the appointment of Young, the arrival of the territorial officials in Salt Lake City seemed a tame affair. Kane wrote a letter of introduction to Young praising Brocchus and Brandebury.The Mormons greeted the officials with social events and dinners. Then on September 8, 1851, Brocchus spoke in a session of the semiannual conference of The Church of Jesus Christ of Latter-day Saints, and relationships deteriorated rapidly. Although no transcript of his message has survived, summaries exist, and historians have commented widely on its content. Fortunately, we have a lengthy summary by Wilford Woodruff, who may have prepared it for his diary from shorthand notes.
According to Woodruff, Brocchus maintained a good rapport with the congregation until he came to the discussion of the violent attacks against Mormons in Missouri and Illinois. He deplored the persecution, but justified the failure of the federal government to come to the Mormons’ aid, arguing that the government “had No power”—we probably would use the term “authority”—to do so. He told the people if they “wanted redress” for their wrongs, they should “Apply to Missouri & Illinois,” where they had received these wrongs. “This part of the speech,” Woodruff wrote, “stir[r]ed the Blood of the whole congregation.” Then, Woodruff wrote, “Much was said By the speaker which was Calculated to Stir the Blood of the people And offend them.”
Brocchus did not seem to understand that Mormons had sought redress in both states, but had received neither judicial, legislative, nor executive assistance in Missouri and only token executive assistance in Illinois. Rather, local militias had forced Mormons to flee both states with the loss of hundreds of thousands of dollars in property and hundreds of lives, principally from disease, starvation, malnutrition, and freezing weather. Young arose after the speech and commented that “Judge Broc[c]hus was either profoundly Ignorant or wilfully wicked” in denying the culpability of the federal government in failing to redress the grievances of the Latter-day Saints in the two states.
Brocchus’s speech and Young’s reply engendered a vigorous response. Fearing for their lives in a hostile community, Brocchus, Brandebury, Harris, and Day left the territory for the United States on September 28, 1851.The flight of the secretary and judges had serious consequences for Utahns. Harris took with him the money Congress had appropriated for the territorial government. Young and the territorial legislature tried to force him to leave the money, but the judges ruled against them. The absence of the two judges left only Snow to preside over all district court business for a territory whose settlements stretched, in 1851, from Brigham City on the north more than three hundred miles to Cedar City on the south and from Fort Bridger (now in Wyoming) on the east nearly seven hundred miles to Carson Valley (currently in western Nevada) near the California border on the west.
In an attempt to apprise Fillmore of the seriousness of the runaways’ actions, shortly after the judges left, Young wrote to the president outlining the steps he had taken, after waiting more than a year following the passage of the territorial organic act, to inaugurate the government of Utah Territory. Young admitted he had moved with dispatch and without approval of the territorial secretary, who had not yet arrived, to order a census and the apportion of the territory into districts for the election of the legislature and a delegate. Young had begged Harris, Brandebury, and Brocchus not to leave the territory. Harris’s intentions particularly distressed him because the secretary planned to take the funds with him that Congress had appropriated for the payment of legislative expenses, a course Young “considered . . . illegal.” In an attempt to thwart Harris’s action, Young, with the secretary’s approval, called the legislature into an extraordinary session. Harris, however, refused to prepare a roll for the legislature or to perform other duties prescribed in connection with the session, and he secured a ruling from the territorial supreme court sustaining his decision to carry the money from the territory.
In his letter to Fillmore, Young faulted the government for failing to execute “those laws in times past, for our protection.” He accused some unnamed officials of “abuse of power . . . even betraying us in the hour of our greatest peril and extremity, by withholding the due execution of laws designed for the protection of all the citizens of the United States.” As a proximate case in point, the governor cited the actions of the runaway officials who deprived the territory “of a Supreme Court,” of the official seal, of publication of laws, and of other statutory benefits. In addition, Young faulted the judges for their failure to take up their judicial duties after they arrived in the territory. He recommended that the president appoint people who had some knowledge of conditions in Utah, and he also suggested the government forward territorial funds through Charles Livingston, a non-Mormon merchant doing business in Salt Lake City, who could see to the payment of legislative and other expenses. The legislature approved a memorial supporting Young’s allegations.
Three weeks after the judges left, Young wrote to Fillmore again. The governor explained the administrative and legal problems caused by the flight of the judges and secretary and the lack of instructions from Washington on Indian affairs. In the exigency of the situation, he appointed Willard Richards as territorial secretary pro tem.
With the flight of the judges, the people of Utah faced the difficulty of finding courts to try offenders or judges to preside in the territory. As a stopgap measure, Governor Young vested responsibility for all of the territorial district courts in Judge Snow. Then, to help relieve the pressure on Snow, in 1852 the territorial legislature extended the jurisdiction of the county probate courts to include civil and criminal cases.In addition, justices of the peace adjudicated cases within their jurisdictions. Most of the federal judges considered Utah’s probate court jurisdiction illegal. In 1874 the U.S. Supreme Court agreed, and in the same year Congress abolished the jurisdiction in a provision of the Poland Act.
While Young and others argued their case from far-distant Utah, Bernhisel returned to Washington to defend his Mormon constituents. On December 12, he met with Fillmore. Bernhisel asked the president whether anyone had preferred charges against Young. Fillmore said the runaway officials had done so verbally, and he had told them to “reduce their charges to writing and send them to the State Department.” He told Bernhisel that when the runaways had lodged their charges, “he would give [Bernhisel] an opportunity to answer.”
Eager to secure support from someone friendly to the Mormons with political connections, Bernhisel wrote to Kane first on December 11, 1851, to apprise him that Brandebury and Harris had arrived in Washington.On December 17, Bernhisel wrote Kane again. This second letter was the first the Pennsylvanian had read that outlined details of the charges against the Utahns. He resolved to assist the Mormons and considered it his duty to ask for the closest scrutiny of the charges by a congressional committee. Kane drafted a letter to Fillmore and a resolution for the House of Representatives on the matter. The resolution asked the president to refer the charges to a special congressional committee with authority to subpoena persons and papers to investigate the matter. Kane sent copies to Bernhisel, cautioning that they must conduct the defense “wisely and temperately.”
As Fillmore requested, Brandebury, Brocchus, and Harris published their grievances in letters to President Fillmore and Secretary of State Webster in the Congressional Globe. The runaway officials also wrote to others elaborating on these and some additional charges. The letters are significant as much for what they reveal about the runaway officials as about conditions in Utah. Clearly anti-Mormon in his views and unfeeling in his attitude toward the people he had sworn to serve, Brocchus gave his version of his speech. He obviously had failed to understand the deep feelings of the people about the violence they had suffered in Missouri and Illinois and about the failure of President Taylor to honor their applications for state or territorial government. Moreover, Brocchus had cast aspersions on Utahns’ patriotism by telling them “if they could not offer a block of marble [for the Washington Monument] in a feeling of full fellowship with the people of the United States, . . . they had better not offer it at all.”
The runaways’ charges attacked both the Mormon leadership and the Mormon people. As was usual in such charges, the runaways alleged that Young successfully commanded “unlimited sway over the ignorant and credulous,” by which the runaways meant all the Latter-day Saints. The runaways criticized the deep resentment of the Mormon people for the abuse they suffered in Missouri and Illinois and the feelings against the government for appointing judges from outside the territory. The officials criticized the way in which Young conducted elections and superintended the census to apportion representatives.
Some of the comments were self-contradictory. The runaway officials asserted that the governor had not appointed local judicial and executive officers as required by the territorial organic act, then commented on decisions made by the allegedly nonexistent judges with whom they disagreed. The runaways alleged first that no elections were held; then they said the people had elected officials obedient to Young. The runaways complained that the legislature was not scheduled to meet until January 1852, but then pointed out it had met September 22, 1851. They alleged from rumors—and without evidence—that various murders had been committed with the approval of Church leaders. Brocchus’s speech, they insisted, was designed to “arrest that flow of seditious sentiment which was so freely pouring forth from their bosoms toward the country to which they owed their highest patriotism and their best affections.”
The letter told also of the disputes between the legislature and Governor Young on the one side and Secretary Harris and Babbitt on the other. The legislature and the governor sought reimbursement for the expenses incurred in legislative meetings and territorial business, but Harris and Babbitt refused to part with the money Congress had appropriated for these purposes. Eventually, a local court ordered Babbitt’s property seized and sold to settle the debt, but Harris left Utah with the money entrusted to him, which he deposited with the assistant U.S. Treasurer in St. Louis.
Taking the opportunity Fillmore promised him, after receiving a copy of the charges from the State Department, Bernhisel penned a response on December 27. This letter added very little to a letter to Fillmore that Bernhisel had sent on December 1, in which he denied the charges of seditious statements and accused Brocchus of insulting the people of the territory in his speech by questioning their patriotism.
Moreover, Bernhisel informed Fillmore and Kane of the falsity of specific charges against Young. Since the charges included allegations that Young had conducted a fraudulent census, Bernhisel secured a statement from the superintendent of the census that said the “returns are all in good and regular form,” including all information required by census takers.Bernhisel then supplied information on the conduct of elections. He pointed out that Young had ordered the elections in conformity with the provision of the Utah territorial organic act that authorized him to conduct the first election “‘in such manner,’” time, and place “‘as the Governor shall appoint and direct.’”
“A Plain Statement of Facts”
Energized by the need to act, Kane collaborated with Bernhisel and also with Jedediah M. Grant (fig. 17), the current mayor of Salt Lake City and a member of the Church’s First Council of the Seventy, whom the Utah leaders sent to Washington to help deal with this problem. Grant arrived in Washington on December 8, 1851. After consulting with Bernhisel, Grant went to Philadelphia, where he met with Kane later that month.
Early in their discussions, Kane learned from Grant something that disturbed him. Grant explained for the first time of the practice of polygamy among the Mormons, which, according to Kane, made it impossible “truthfully to refute the accusation of their enemies that they tolerate polygamy or a plurality of wives among them.” He felt deeply pained and humiliated “by this communication for which [he] was indeed ill prepared.” Nevertheless, he wrote, he retained “personal respect and friendship” toward Bernhisel and the Mormons.More important, however, this information did not dim Kane’s resolve to assist the Mormons.
In February 1852, at Kane’s suggestion, Kane and Grant decided to draft what the Pennsylvanian called “‘a plain statement of facts’ over Mr. Grant’s signature,” which met with Bernhisel’s “entire approbation.”Grant published the first letter in the New York Herald, and it was published as a pamphlet, together with two other letters signed by Grant that defended the Mormons against the runaways. The letters, written in a folksy style, emphasized the friendly treatment bestowed on the officials that had been reciprocated with verbal attacks and officiousness. (For example, the locals had sponsored elaborate balls and banquets for Brandebury, Harris, and Snow that Governor Young and local dignitaries had attended.) Grant and Kane used sarcasm and ridicule in the first letter with a description of Brandebury’s shirt, which “came about as near to being the great unwashed . . . [and] the most Disrespectful Shirt, ever was seen at a celebration.”
From there, Kane and Grant moved to refute the runaways’ charges against Mormons by attacking Brocchus’s September 8 speech. The two letter writers characterized the speech as self-serving and offensive, claiming Brocchus had insulted Mormon women and questioned Mormons’ patriotism. Kane and Grant then professed astonishment that “neither Brandebury nor Harris” disavowed Brocchus’s actions. Rather, both officials announced their intensions to return with Brocchus. Moreover, in spite of the actions of the U.S. Marshal and the territorial legislature in their attempts to induce Harris to distribute the money due the legislature for “mileage, stationery, &c.” from the $24,000 he carried for the purpose, the secretary refused. Instead, he wrote the legislators “an insulting letter,” alleging “they were illegally elected and constituted.”
In the second letter, Kane and Grant turned specifically to the charges made in the reports of Brandebury, Brocchus, and Harris. Listing the charges seriatim, Kane and Grant labeled them either as true or false. On some charges they explained their answer, and on most they asked for a trial to examine the allegations on the evidence. They agreed that “almost the entire population” of Utah consisted of Mormons but denied that the Church controlled “the opinions, the actions, the property, and even the lives of its members” and denied that it had usurped and exercised “the functions of legislation and the judicial business of the Territory.”
Kane and Grant denied that the Church had disposed of the “public lands upon its own terms.” Rather, the Mormons claimed the land only as squatters, by which they owned only “a certain right of preëmption in for our Improvements.” Because of “the delay of Congress in legislating . . . [they] remain without Titles to [their] Homes.”
The letter writers claimed the Mormons had made a mistake in coining money. From lack of expertise in purifying the gold, they said, the coins were worth less than the stamped amount. Rather than circulating at their stamped value, as the runaways had insisted, the coins circulated at their actual value in gold.Kane and Grant then acknowledged that the Church did ask members to pay tithing, but did not require it of nonmembers. Tithing, they asserted, “is a Free Will Offering purely, [calculated] by the giver, and is not accepted from those who are not in full communion.”
To the charge that the Mormon community levied “enormous taxes” on nonmembers, Kane and Grant replied with an explanation. They agreed in rather convoluted language that Mormons did levy high taxes on liquor and that this fell inordinately on those who consumed large amounts. The tax burdened non-Mormons more than Mormons because the latter did not drink as much alcohol as the former.Kane and Grant also denied that they made the rules and teachings of the Church the basis of “all the obligations of morality, society, of allegiance, and of law.”
The second letter ended in a peroration designed to blunt the substance of the charges. The thesis of the section lay in the opening, which charged “the enemies of Religious Liberty” with using “the old Trick” of “persuading the ignorant to confound the two notions of Spiritual or strictly Religious influence, and Material or Political influence.” Although they “often go hand in hand, . . . they are two things entirely distinct and independent of each other.” The substance of the argument was that Mormons followed Brigham Young not because he or others forced them to do so, but because they believed his leadership had helped preserve and promote their community and that the missionaries sent out under his direction would spread American civilization throughout the world.
The third letter included a defense against a number of charges. It argued for Mormons’ true patriotism by citing their backgrounds and family connections to the colonial founders and American revolutionaries.It defended Young’s leadership as salutary and approved by the majority. It also denied that his influence derived from violent abuse. Kane and Grant attacked the attempt of the runaways to blame the entire Mormon community for the violence of some in the community. They explained the murders of John M. Vaughn and James Monroe, by the cuckolded husbands Madison Hamilton and Howard Egan, as the result of the two defiling the marriage bed through “adultery.” Both Hamilton and Egan stood trial for the murders, and in both cases the juries found them not guilty. In Egan’s trial, his attorney, George A. Smith, argued that in similar cases of the murder of adulterers in New Jersey and Louisiana, juries had returned similar verdicts. Kane and Grant also offered an oblique defense of plural marriage.
After the letters were published in pamphlet form, Grant sent a copy to Fillmore with a cover letter. The letter argued for religious and political liberty and insisted that “we contradict every single statement of the Delinquent officers, and by wage of law or battel [sic] will equally rejoice to be brought to prove their falsehood.—We call for the Examination under oath.”
Kane and Grant’s first letter along with Bernhisel’s lobbying led Fillmore to side with the Utahns against the runaway officials. On March 17, 1852, Bernhisel met with Fillmore at the president’s request. The discussion led Bernhisel to conclude that Fillmore appeared eager “to do justice to the people” of Utah and that he would not remove Young as governor.
Fillmore did, however, ask Bernhisel about the murder of John M. Vaughn. Amos E. Kimberly, a friend of Vaughn’s, had written to Fillmore, blaming the entire Mormon community for the murder.Unlike Grant, who excused the murder because Vaughn had committed adultery with Hamilton’s wife, Bernhisel deplored the murder. He pointed out that the courts had tried the murderer and the jury had returned a verdict of not guilty. He explained that after a previous incident of adultery between Vaughn and another married woman, Young had actually intervened to protect Vaughn after he had professed repentance, promised to reform, and submitted to rebaptism.
By early May it had become clear that Fillmore, Webster, and Congress had all accepted the Mormon view of the dispute. Kane, Grant, and Bernhisel had played crucial roles in shaping public opinion on the question, and Fillmore seems also to have accepted Young’s explanation of his actions. Fillmore decided to retain the Mormon appointees Young, Blair, Heywood, and Snow. After some failed or withdrawn nominations, the Senate confirmed Lazarus H. Reed as chief justice to replace Brandebury, Leonidas Shaver to replace Brocchus, and Benjamin G. Ferris to replace Harris.Reed and Shaver proved exceptionally popular in Utah, while Ferris remained only six months before leaving the territory and writing an anti-Mormon exposé.
In the short run, Utahns won this skirmish, though the charges of sedition and the flight of the officials came back to haunt them in Ferris’s exposé and again in 1857, when President James Buchanan sent an army to Utah with a new set of federal officials. In the case of the original runaways, however, on June 15, 1852, Congress passed a law prescribing forfeiture of pay for territorial officials who left their posts without permission, and Secretary of State Webster recommended that Brocchus return to Utah or resign. Public opinion as expressed in the press remained predominantly anti-Mormon, although a few articles supported the Saints.
“Federal Authority versus Polygamic Theocracy”
The case of the runaways did not end Kane’s assistance to the Mormons. Kane again became their mediator with the U.S. government during the Utah War in 1857 and 1858. He accomplished this task admirably as William MacKinnon has shown in a number of publications, including his essay herein.Between 1858 and 1871, Kane involved himself in a number of business and military affairs. From 1861 to 1863, he served as a commander of Pennsylvania units in the Civil War, reaching the rank of Brigadier General (and Brevet Major General) of Volunteers. Calls for help from the Mormons tailed off, as did correspondence with them until 1869, when he began to lobby Congress and various presidents to try to defeat anti-Mormon legislation.
Kane became even more intensely involved in Mormon relations with the federal government following President Ulysses S. Grant’s 1870 appointment of James B. McKean (fig. 18) as chief justice of the Utah Territorial Supreme Court.McKean became extremely unpopular with the Mormons and in 1872 admitted he had gone to Utah on a mission from God to suppress Mormonism. Grant undoubtedly shared McKean’s views on the need to suppress Mormon polygamy and to control theocratic government. Grant’s appointment of anti-Mormon judges to Utah Territory, such as Cyrus M. Hawley, Obed F. Strickland, and Jacob S. Boreman, seems to parallel those feelings. U.S. Attorney William Carey and his assistant Robert N. Baskin (fig. 19) had intense dislike for Mormons. On the other hand, some of Grant’s appointees such as Samuel A. Mann, Philip H. Emerson, George C. Bates, and Sumner Howard got along well with Mormons.
Some of the actions McKean took to suppress the Mormon influence he so strongly opposed were clearly illegal. For instance, ruling that territorial district courts were United States district courts, he authorized the U.S. Marshal to empanel grand juries on an open venire rather than under the Utah Territorial court statute of 1852. Under McKean’s ruling, rather than having the judge of the county probate court select potential jurors from a list of men from the tax rolls as territorial law required, the marshal simply walked along the street and picked men to serve on the grand jury. This practice led to juries packed with anti-Mormons who returned indictments against Mormons.
One of the earliest of these indictments challenged the legality of actions taken under a warrant issued by a previous federal judge, Chief Justice John F. Kinney (fig. 20). Acting on Kinney’s warrant, in 1862 a posse led by deputy marshal Robert T. Burton had tried to free William Jones and two other men held as prisoners at Kingston Fort in South Weber by an apocalyptic religious group headed by Joseph Morris. In the attempt to free the prisoners, Burton’s posse killed several members of the group, including Isabella Bowman. One of McKean’s packed grand juries indicted Burton for Bowman’s murder, but later in the trial the petit jury found Burton not guilty.
In April 1871, after the grand jury indictment, but before Brigham Young knew the petit jury would free Burton, Young turned to Kane for help. With Kane’s connections in Washington, Young hoped the Pennsylvanian might be able to induce Grant to rid the territory of a judge who had “rendered himself so obnoxious to the people by his tyrannical and high handed measures.” McKean had, Young said, become “the acknowledged standard bearer” of a “miserable clique of pet[t]ifogging carpet-baggers with their packed grand jury.”
In September 1871, a similarly packed grand jury indicted Mormon leaders Brigham Young, George Q. Cannon, and Daniel H. Wells, along with Godbeite leader Henry W. Lawrence under territorial law that prohibited “lewd and lascivious cohabitation and adultery.”After admitting Young to $5,000 bail, McKean denied the motion of Young’s attorney, Thomas Fitch, to quash the indictment. In a long statement of his intent, McKean asserted that although “the case at bar is called, ‘The People versus Brigham Young,’ its other and real title is, ‘Federal Authority versus Polygamic Theocracy.’”
Fitch filed a bill of exceptions to what he considered McKean’s outrageous statement. It seems clear that McKean had perverted the territorial laws because “Mormons [through the Utah legislature] had not intended the adultery and lewd and lascivious cohabitation laws to apply to their plural marriage system.” In addition, McKean refused to recognize the marriage exception to the testimony of plural wives against their husbands.
U.S. Attorney George C. Bates, who would have had to prosecute the accused, questioned the indictments because the grand jury did not indict Mormon leaders under the Morrill Act of 1862, which prohibited polygamy. Instead, the indictments were given under local laws that the territorial legislature had passed to punish adultery and prostitution instead of plural marriage.
In October 1871, McKean began excluding all potential Mormon jurors from petit as well as grand juries by asking them whether they believed in the revelation authorizing plural marriage. Young recognized that McKean’s action placed him and other Church leaders in additional jeopardy, and Young turned again to Kane. Apparently loath to trust the U.S. mail, Young sent his son John W. Young with a letter to Kane pleading for help. McKean’s rulings, the Mormon leader wrote, “have deprived the old settlers here of the right to sit on all juries, and in other ways deny to us the rights belonging to the common people.” He believed that by excluding Mormons from juries, McKean and his associates “have at last succeeded in what they trust will be a death blow to Mormonism.” Owing to the actions of the grand jury, Young expected “to be a prisoner in the Military Post, Camp Douglass, long before” the letter reached Kane.
McKean and his associates, especially Robert N. Baskin, who served for a time as assistant U.S. attorney, had long hoped to indict Young for something more serious than polygamy. They got their opportunity by working with William Adams Hickman, a confessed murderer. In September 1868, Hickman’s Taylorsville bishop excommunicated him from the Church in absentia for his felonious activities. In September 1870, Hickman murdered a man who threatened his family in Tooele County. Indicted for the murder, Hickman agreed with McKean and Baskin to turn states’ evidence against Young and others in return for his freedom. On the basis of Hickman’s stories to Baskin, McKean secured indictments against Brigham Young, Daniel H. Wells, and Hosea Stout for the murders of Richard Yates and several others during the Utah War. McKean asserted he had evidence other than Hickman’s testimony, but the prosecuting attorney provided none.
The letter John W. Young carried to Thomas L. Kane apprised him of the danger created by McKean’s action. In a letter replying to Young, Kane said he was considering coming to Utah to meet with Young, which he eventually did during winter 1872–73. In the meantime, in view of the indictment, Kane advised Young to retain the best legal counsel available. Kane suggested hiring William M. Evarts, who had served as chief counsel for Andrew Johnson in his impeachment hearings and as U.S. attorney general during the early years of the Grant administration.
Later in the fall, Kane contacted William H. Hooper, who served as Utah’s territorial delegate from 1859 to 1861 and again from 1865 to 1873. On Kane’s suggestion, Hooper agreed to introduce a bill “providing for appeals in criminal causes from the Territorial courts to the Supreme Court of the United States.” Kane also met with “influential parties” to lobby in support of Hooper’s bill and other pro-Mormon matters.
Fearing for Young’s life under McKean’s rulings, Kane urged Young to hide out and to restrict information on his location to close friends. “In the present crisis,” Kane wrote, “I can think of nothing as essential to the safety of your people as your personal security.” In addition, he suggested George A. Smith, John Taylor, Orson Pratt, and others with names familiar to the public go into hiding. “We do not want,” he wrote, “your persecutors to get hold of any man with name enough to help them to a sensation trial.” Kane expected that “political friends of ours may originate more than one measure in Congress for the relief of Utah.” He also encouraged Young not to engage in “duplicity” but rather to remain open about the Church’s beliefs and practices and to be certain that his followers did the same.
Although Kane had urged Young to remain in hiding, the Church president did not do so. Instead, he turned himself in. McKean refused to admit him to bail, but because of Young’s ill health, the judge sentenced him to house arrest rather than incarcerating him at Fort Douglas with several of the others who had been indicted.
After learning of Young’s arrest, Kane began preparing notes for an argument for removing McKean, and Kane lobbied with Congress and Grant either to provide legislative relief or to remove McKean and other supporters. Kane pointed out that friends in California had agreed to serve as sureties for bail equal to a hundred times the bail accepted for Jefferson Davis, the former president of the Confederacy. Yet McKean still refused to grant bail. McKean should not require Young, Kane argued, to submit to imprisonment for an indefinite period designed to break down his health before he could obtain an acquittal on the charges. Kane met with Pennsylvania Senator Simon Cameron, and Cameron met with Grant to argue Kane’s case. Kane also met with Secretary of State Hamilton Fish and with Grant. Instead of securing help, Kane found that Grant seemed bent on prosecuting Young.
After Young had spent several months in house arrest, which the other indicted leaders spent at Fort Douglas, the United States Supreme Court ruled against McKean’s theory of jury empanelling. In the federal case of Clinton v. Englebrecht,the Supreme Court ruled that the territorial federal courts had to follow local law in empanelling juries. Contrary to McKean’s ruling, the Supreme Court said, the territorial courts were merely legislative courts of the territory created by federal statute and thus subject to territorial law. This decision provided the legal basis for throwing out 130 indictments found by McKean’s grand juries, and it vacated judgments in his petit juries as well. Significantly, the Englebrecht decision invalidated the indictments for lewd and lascivious association and adultery against Young, Cannon, Wells, and Lawrence, and the indictments for murder against Young, Wells, and Stout.
Thwarted in his efforts to try the Mormons for polygamy and for murder, in 1873 McKean mounted a rearguard action against Brigham Young. To do so, McKean accepted the divorce suit of Ann Eliza Webb Dee Young (fig. 21), Brigham’s twenty-fifth wife.Failing to recognize that under federal statutes Brigham’s marriage to Ann Eliza was illegal, McKean ordered the prophet to pay alimony of five hundred dollars per month pending the outcome of the litigation. Brigham refused to do so on the grounds that she was not his legal wife, but that she had been sealed to him in a religious rather than a civil ceremony. Refusing to accept his plea, McKean fined Brigham twenty-five dollars and sent him to the territorial penitentiary in Sugar House for a night. Recognizing that accepting the marriage as legitimate would undermine federal statutes that prohibited polygamy, the U.S. attorney general later ordered the case dismissed.
After the failure of McKean’s judicial crusade, Kane continued to work for the Mormons on a number of other matters. These included the attempt to secure statehood in 1872 and several bills designed to undermine local control. He helped, for instance, to mitigate the impact of the Poland Act of 1874, since the act as finally passed authorized the judges of the county probate courts to remain involved in the selection of jury panels instead of turning over the entire empaneling to the U.S. marshal. Kane also tried, unsuccessfully, to derail the Edmunds Act.
In retrospect it seems clear that, although he failed in a number of his efforts, Kane played a crucial role in helping the Mormons in their dealings with Washington from 1849 until his death in 1883. As citizens of a territory, Mormons in the Great Basin could not vote in national elections, they had to accept whatever appointees the president and Senate chose to send to them, and their delegate to Congress had only limited power. Kane used his personal prestige and political connections to overcome these obstacles. His efforts to secure the appointments of Young, Snow, Blair, and Heywood to territorial offices had undoubtedly helped. Kane’s assistance in thwarting the efforts of the runaway officials to undermine local government and interests proved invaluable. Most particularly, his advice to Bernhisel and especially his work with Jedediah Grant in drafting the three letters to the New York Herald helped immeasurably. Although Kane also provided advice in the campaign to thwart McKean and Baskin in their effort to undermine local democratic government in Utah and to lodge spurious charges against Young and other Church leaders, his extensive efforts in Washington proved of little help, largely because the Grant administration supported McKean’s efforts. It is unclear just whether Kane’s public efforts in support of the Mormons in this case had any influence on the Supreme Court in the Englebrecht decision. Significantly, however, he did assist in helping to remove the most obnoxious features of the Poland Act of 1874.
Kane’s efforts proved to be as successful as one might expect in a representative democracy. This was particularly true since the people of Utah had little political clout. On balance, Kane’s personal prestige and political connections helped the Mormons a great deal.