Brigham Young University BYU ScholarsArchive Theses and Dissertations 1959 A History of the Federal and Territorial Court Conflicts in Utah, 1851-1874 Clair T. Kilts Brigham Young University - Provo Follow this and additional works at: https://scholarsarchive.byu.edu/etd Part of the Mormon Studies Commons, and the United States History Commons BYU ScholarsArchive Citation Kilts, Clair T., "A History of the Federal and Territorial Court Conflicts in Utah, 1851-1874" (1959). Theses and Dissertations. 4848. https://scholarsarchive.byu.edu/etd/4848 This Thesis is brought to you for free and open access by BYU ScholarsArchive. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of BYU ScholarsArchive. For more information, please contact [email protected], [email protected]. A HISTORY OP THE FEDERAL AND TERRITORIAL COURT CONFLICTS IN UTAH, l85l-l874. A Thesis Presented to the Department of History Brigham Young University Provo, Utah In Partial Fulfillment of the Requirement for the Degree Master of Arts in History Clair T. Kilts July, 1959 ACKNOWLEDGMENTS It is with sincere appreciation that the writer acknow­ ledges the assistance of the following who have made it possible to complete this thesis: To the members of the thesis committee, Professor Eugene Campbell, Professor Gustive 0. Larson and Professor Russell Rich. To the library staff of the Brigham Young University. To A. William Lund and staff at the Church Historians Office of the Church of Jesus Christ of Latter-day Saints. To Dr. Cooley and Dr. Mortenson and staff at the State Historian's Office. To my Father and Mother for assisting and encouraging throughout this endeavor. And especially I wish to thank my wife, Liliane, for without her love, understanding and encouragement, this thesis would never have been completed. To my Father, Mother and Wife, I wish to dedicate this research for their love and encouragement during this effort. iii TABLE OP CONTENTS Page ACKNOWLEDGMENTS. iii LIST OP ILLUSTRATIONS v INTRODUCTION 1 Chapter I. BACKGROUND OF MORMON COURT SYSTEM 5 II. MORMON THEOCRATIC COURTS l847-l849 14 III. THE STATE OF DESERET 23 The Need of Civil Authority The Bishops Magistrates The Gentile Observers Administration of Justice IV. TERRITORIAL DEVELOPMENTS PROM l85l TO 1857 ... 39 The Run Away Judges The Egan Case Power to the Probate Court Friendly Appointees The Trouble Makers V. GENTILE REGIME 73 Period of Occupation The Inactive Period Termination of Judicial Power VI. SUMMARY AND CONCLUSION 100 APPENDIX 104 BIBLIOGRAPHY 160 iv LIST OP ILLUSTRATIONS Figure Page 1. Chart of Mormon Court System. 9 2. Nineteen Wards of Salt Lake City in 1849 21 3. The State of Deseret 28 4. The Territory of Utah. 40 5. Map of Disputed Area in the Egan Case ....... 49 v INTRODUCTION Statement of Problem In studying the history of Utah, a student cannot help but realize the importance of the role of the judiciary in the early history of Utah. Perhaps no other state in the Union has had a more interesting judicial history than has the State of Utah. During the exodus of the early Mormon pioneers from Illinois to Utah, they operated their judicial system ecclesi­ astically, for after leaving Illinois, the Church courts became the main type of judiciary for the Mormon refugees until l849. During the two years following their arrival, the Mormons were too involved in survival to establish a civil government, and therefore administered justice with the Church High Council and Bishops' courts. On March 12, l849, the State of Deseret was organized due to the need for instituting a civil government in place of the previous Theo-democracy. Deseret, during her two short years, enjoyed a very interesting judicial career which ended in her attempt to gain statehood. Deseret failed in this attempt to gain statehood, and Congress voted to reduce the proposed boundaries of Deseret and created the Ter­ ritory of Utah. After Utah was made a territory, some Federal officials were sent to Utah to officiate, and others were appointed from among the Mormons. These officers were not to last long for on 1 2 September 28, l851, three of the highest officials deserted their posts, two of whom were Supreme Court Justices. Due to their desertion, a great judicial burden was placed on the sole remaining Justice, Zerubbabel Snow. To help relieve the burden, the Territorial Legislature, on February 4, 1852, passed an act which gave the probate courts of the territory original juris­ diction, criminal and civil. This piece of legislation was to be the source of much trouble for the next twenty-two years. As new Federal justices were appointed to Utah, they would lash out against the excessive jurisdiction of the probate courts. In some respects, the jurisdiction of the probate courts was equal to that of the Federal judges in their District courts. The power of the probate courts was to be, in part, the cause of Associate Justice Drummond's bitterness toward the people of Utah and the indirect cause of the military expedition to Utah in 1857. From 1858 to 1874, Utah faced many hostile justices, until the time of Chief Justice Mc Kean, who was one of the most hostile toward the probate courts. The end of the probate courts and territorial jurisdiction came on June 23, I874, when Congress passed the Poland Laws which abolished the jurisdiction of the Territorial courts and legal authorities such as the Territorial marshal and Attorney-general. These laws returned the probate courts to their original status, that of being administrators of wills and estates. It is the writer's intent to show the conflict that arose during this period and also to show that not enough recog- 3 nition is given to the importance of the conflicts between the Federal and Territorial authorities for the jurisdiction in Territorial affairs. It is the writer's feeling that polygamy is sometimes overly emphasized during this period and that not enough emphasis is placed on an equally great conflict, the courts. Present Status In the history of Utah, there has been no extensive history written on the Utah court system. It has been the writer's experience, in research on this problem, to find that only one book has been written on this subject, which is called the "History of the Bench and Bar of Utah,"1 and this is poorly documented. It was written more as a biography of the Utah Bar members at the time of its publication than as an accurate his­ torical account of the Utah Bench. Tullidge, in his histories, deals with the courts, but is incomplete in many respects. It was found that the more modern writers are not complete and do not elaborate in any great detail on the court problem. It was in taking a legal history class at the University of Utah Law School that the writer realized just how little has been done in a written history of the Utah courts. It is for this reason that the writer has undertaken to write a small phase of the history of these courts. history of the Bench and Bar of Utah (Salt Lake City, Utah: Interstate Press Association, 1913) 4 Basic Source of Information For the basic sources, the writer has mainly used primary sources which include journals and diaries of early inhabitants of Utah, the Journal History of the Church of Jesus Christ of Latter-day Saints, Government publications and documents, Ordi­ nances and Statutes of the State of Deseret and the Territory of Utah, newspapers, magazines, writings contemporary to the period of this study, and modern day writings. For a complete listing of primary and secondary sources, refer to the bibli­ ography. CHAPTER I BACKGROUND OP MORMON COURT SYSTEM To understand fully Utah's early court system and its problems, one must become familiar with the beginnings of Mormonism before it came west. These beginnings reveal certain practices which were to affect the progress of the courts in Utah. It was on April the sixth of 1830 that the Church of Jesus Christ of Latter-day Saints (Mormons) was organized at Payette, New York, with a total membership of six. The Church grew rapidly due to vigorous proselyting. In January of 1831, just nine months after its organization, the leaders moved the Church to Ohio, Upon their arrival in Kirtland, Edward Partridge was called on February 4th, 1831, by a purported revelation given to Joseph Smith, to hold the first office of bishop to be created in the Church.1 One of the duties of the bishop was to be pre­ sent at trials of members who failed to keep the commandments of the Church.2 Prior to this time it had been the Elders (then 1The Doctrine and Covenants of the Church of Jesus Christ of Latter-day Saints (Salt Lake City, Utah: The Church of Jesus Christ of Latter-day Saints, 1948), Section 41:9. Hereafter referred to as the Doctrine and Covenants by section and verse 2Ibid., Sec. 42:81-82. 5 6 the highest office of the priesthood) who had dealt with the disobedient members of the Church through their Elder's court. After the appointment of Bishop Partridge, the Elders continued to function as a Church tribunal. It is not known exactly when the Elders ceased to function as a court, but there are records of their trying cases as late as December 26, 1833, in which trials two members were excommunicated from the Church for transgressions.1 In a purported revelation of Joseph Smith on August 1, 1831, Elder Partridge was further instructed in a bishop's responsibilities as a "judge in Israel." And to judge his people by the testimony of the just, and by the assistance of his counselors according to the laws of the kingdom which are given by the prophet of God.2 As the Church grew, bishops were added, for on December 4, 1831, Newel K.