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CHAPTER VIII.

The Reynolds Case, in Which the Validity of the Act of 1862 Against Polygamy was Sustained by the Supreme Court of the United States.

    In Whitney's History, Vol. III, pages 46 and 47, this statement is made:

    "In the summer of 1874, negotiations were opened between the Mormon authorities and United States Attorney, Mr. Carey, and it was arranged that a case should be provided. Mr. Carey and his assistant were preparing at this very time to launch a series of prosecutions for polygamy against prominent Mormons, who, though it was known that they could not be legally convicted - their polygamous relations being of longer standing than the law under which it was proposed to prosecute them - had nevertheless been singled out as a target for a vain, though vigorous onslaught.

    "The district attorney agreed that if a test case were furnished, these proceedings should he dropped. This circumstance no doubt expedited the subsequent arrangement. It was stipulated that the defendant in the case should produce the evidence for his own indictment and conviction, and it was generally understood that the infliction of punishment in this instance would be waived. Only the first half of the arrangement was realized. The defendant in the test case, George Reynolds, supplied the evidence upon which he was convicted, but his action did not shield him from punishment, though it doubtless had the effect of mitigating the same. Messrs. Carey and Baskin prosecuted."

    Reynolds was convicted of polygamy and sentenced to be imprisoned at hard labor for the term of two years, and to pay a fine of $500. The foregoing statement of Mr. Whitney is absolutely untruthful, as are many of the statements relating to the Mormon question contained in his History of Utah. In his comments he not only misstates the motives of the federal officers of the Territory, but also the motives of the Gentile inhabitants who opposed the despotic hierarchy. If such an agreement had been entered into, and Reynolds in pursuance thereof, as alleged, had furnished the evidence upon which he was convicted, his heavy sentence was a glaring outrage. Mr. Cary, the able attorneys who defended Reynolds, and myself were present when he was sentenced, and no objection whatever was made to the sentence imposed. If any such "arrangement" had been made, for Mr. Cary or myself (if I had, as alleged, been his assistant in the trial), to have remained silent and failed to interpose an objection to the sentence, would have been dishonorable in the extreme. Moreover, it is irrational to suppose that Reynolds' attorneys being present, would have failed to object. If they had done so and stated the alleged arrangement, the court on its own motion would have either granted a new trial, or imposed the lightest sentence possible. Whitney's statement is flagrantly untrue. In the trial the case was contested from start to finish. Every tangible exception was taken by the able attorneys for the defense, and afterwards urged in the appellate courts. If any arrangement had been made, the long and hotly contested trial was wholly unnecessary. All that was required in the case, if it were intended for a test one, was a demurrer to the indictment on the ground that the anti-polygamy law of 1862 was unconstitutional, and upon its being overruled, an entry of a plea of guilty. Furnishing evidence by the accused was wholly unnecessary, and, in fact, was not done. The facts regarding the securement of the witness whose testimony convicted Reynolds are as follows:

DANIEL H. WELLS.

    I was not an assistant to Mr. Cary. At the time of the trial General Cowan, who was assistant Secretary of the Interior, was in the city, having been sent here by President Grant to investigate affairs in Utah. He expressed to me a desire to go to the court house where the trial of Reynolds was in progress. I accompanied him there. Daniel H. Wells and other witnesses by whom Cary expected to prove the second marriage, testified that they knew nothing respecting the alleged plural marriage of Reynolds. While Mr. Wells was being examined, and had positively denied all knowledge of such a marriage, General Maxwell, who was United States marshal, stated to me that Cary had failed to prove the second marriage; that there were no other witness in attendance, and that the court would have to instruct the jury to acquit the accused. I asked the marshal if the plural wife had been subpoenaed, and he said that she had not. I then secured a subpoena for the plural wife as stated in the letter of General Cowan, hereinafter set out, and it was placed in the hands of Arthur Pratt, a deputy marshal, with instructions to procure a buggy and bring the witness to the court house as soon as possible. In about twenty minutes Pratt appeared in the courtroom with the witness and she was immediately sworn. In her examination she frankly stated that she and Reynolds were married, and that Brother Daniel H. Wells had performed the ceremony. The first marriage having before been shown, the testimony of his plural wife completed the chain of evidence which proved Reynolds' guilt beyond reasonable doubt. Had not the plural wife's attendance been procured in the manner it was accomplished, Reynolds would have been acquitted; and yet that saintly historian has given currency to a patent falsehood, which by implication charges both Mr. Cary and myself with having been guilty of infamous conduct towards George Reynolds, with the evident intention of placing the federal authorities in a false light before the public. For, what could be more disgraceful than the sentence of Reynolds if Whitney's statements are true? The statements were also intended apparently to make it appear that the leaders of the Mormon church had such implicit faith in the unconstitutionality of the law of 1862 that they were anxious to "make a case" for the purpose of testing its validity.

    The grand jury which found the indictment against Reynolds was composed of twenty-three members, and among the numerous exceptions taken by the defense was one attacking the validity of the grand jury. On an appeal by the defendant the judgment against Reynolds was reversed by the supreme court of the Territory, which held that the legal grand jury under the law of the Territory consisted of fifteen members, and that the indictment against Reynolds, having been found by a grand jury composed of twenty-three members, was illegal. The indictment was therefore quashed. (See 1 Utah, 226.)

    Reynolds was afterwards indicted and convicted for the same offense. He was defended by attorneys, of whom P. L. Williams, the distinguished and able attorney for the Oregon Short Line railroad company, was the chief.

    Mr. Williams recently assured me that he and his assistants did their best to secure the acquittal of Reynolds, and took every available exception. At the second trial Amelia Jane Scofield, the plural wife of Reynolds, whose testimony at the former trial convicted him, could not be found, but upon a showing that she had been spirited away by the defendant to prevent the marshal from subpoenaing her to attend as a witness at the second trial, her former testimony was introduced over the objection of the defense and again convicted Reynolds. The judgment on final appeal to the supreme court of the United States was affirmed, and the validity of the anti-polygamy law sustained.

    The decision of the case in the supreme court of the United States is reported in 98 U. S., 145. The following extract from the opinion, which was delivered by Chief Justice Waite, shows the number of exceptions urged by the counsel of Reynolds at the hearing of the case on appeal in that court:

    "The assignments of error when grouped present the following questions:

    "First: Was the indictment bad because found by a grand jury of less than sixteen persons?

    "Second: Were the challenges of certain petit jurors by the accused improperly overruled?

    "Third: Were the challenges of certain other jurors by the government improperly sustained?

    "Fourth: Was the testimony of Amelia Jane Scofield given at a former trial for the same offense, but under another indictment, improperly admitted in evidence?

    "Fifth: Should the accused have been acquitted, if he married a second time, because he believed it to be his religious duty?

    "Sixth: Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy?"

    General Cowan, after the final decision of the Reynolds case, wrote a letter to the Cincinnati Commercial, which was published in that paper, and in which he said:

    "George Reynolds had been a clerk in the endowment house in Salt Lake City, a position which threw him into immediate communication with the most prominent officials of the Mormon church. He was also well known in the city, and the fact of his polygamous marriage was notorious in the community. The jury, which had been selected in the usual way, was composed of eight or nine Mormons and three or four Gentiles. They were men of fair average intelligence, and to judge from their appearance, would compare favorably with the average jury in the States. The courtroom was filled with a crowd composed largely of Mormons, who were evidently very much interested in the result of the trial. The Gentiles present were most bitterly hostile to the whole Mormon system, and to the polygamous features of it, especially. The case excited additional interest from the fact that it was understood that it would be a test case, and therefore, that the result would settle definitely the question of polygamy in the Territory for the future. The first marriage of Reynolds was proven without difficulty, and the next and only point to prove was the second, or polygamous marriage. To do this the prosecution relied on the following witnesses:

    "First: Daniel H. Wells, one of the very highest dignitaries of the church, and the one who had solemnized the marriage. He was at the time mayor of the city and commander-in-chief of the Nauvoo Legion.

    "Second: Orson Pratt, a well-known leader and high official of the Mormon church, a witness of the marriage, and one whose duty it seems to have been to keep the records of marriage.

    "Third: A bashful young man, whose name is forgotten, who was married at the same time and place, and under the same ceremony as Reynolds.

    "Fourth: A sister of Reynolds, who resided with her brother and his second wife.

    "One would suppose with such a quartette of witnesses, it would be the easiest thing in the world to prove the second marriage of Reynolds. Yet such a supposition shows an entire ignorance of the true inwardness of Mormon influence over the acts and words of the true-believers, inasmuch as the prosecution was a failure so far as these four witnesses were concerned. Bear in mind that the marriage had taken place but a few months before the trial, probably in August of the preceding year. General Wells swore positively and without hesitation that he had no recollection of performing the marriage ceremony, although the defendant had been in his employ at the time of the marriage and ever since. Orson Pratt had never heard of such a marriage, and did not remember whether he had ever made a record of it or not. The bashful young man, who had kept step with Reynolds while they marched through the mysteries of the endowment house under the matrimonial yoke, had not the faintest recollection of what Reynolds was doing there on that interesting occasion. Miss Reynolds did know that the second wife was living at her brother's house, but did not know in what capacity she was there, showing a lack of curiosity as rare as it was curious. At this point the prosecution had exhausted its resources, and had utterly failed to make out a case. The district attorney could not conceal his chagrin and disgust over his discomfiture, while the Mormons in the courtroom were jubilant, and leaned over the railing to congratulate the exultant defendant over his easy victory. The Gentile spectators were utterly disheartened at the turn of the testimony, as it seemed to them the whole fabric of the prosecution had melted away before the unblushing perjury of the witnesses. At this critical moment, Mr. Baskin, a well-known lawyer of Salt Lake City, formerly of Hillsbourough, in this State, twice the Liberal candidate for delegate to Congress from Utah - a gentleman who is probably as bitterly hated by the Mormons as any other man in Utah - passed to the writer a card on which was written, `Tell him to call the second wife.' This card was passed to the district attorney, who read it and sprang to his feet as if aroused by an electric shock, and asked the indulgence of the court for a short time. Marshal Maxwell left the court room, and in ten minutes brought in the second wife by a side-door, from which she could he seen by the entire audience. As the marshal stepped aside from the door and revealed the person of Mrs. Reynolds No. 2 framed in the doorway, the consternation in the Mormon crowd was startling. The ghost of Joe Smith would scarcely have produced a more profound sensation. Reynolds settled himself low in his seat with a look of hopeless terror, while the general look of dismay spread through the entire Mormon auditory. Intuitively all seemed to think that here was a witness who was bound to tell the truth. Not expecting that she would be called as a witness, and knowing positively that she had not been subpoenaed, no effort was made to compel her to perjure herself; and such effort, it made, must have failed, as she must either have sworn herself the lawful wife of George Reynolds, or tacitly confessed to being his concubine. The polygamous wife took the oath and advanced to the witness stand in a very quiet and unassuming manner, when the following facts were elicited: `My name is --- Reynolds (I have forgotten her christian name). I was married to George Reynolds in the endowment house in this city in August last by General Wells. Mr. Orson Pratt was present, and also Mr. - (naming the bashful young man with the poor memory, referred to above). I spoke to Mr. Wells a few days ago about the case, when he told me that I need not be uneasy about it; that I would not be called as a witness, and that they could not convict George. I have lived with George Reynolds ever since our marriage.'

    "And that was all. Now, here was a predicament. Everyone who heard and saw Mrs. Reynolds knew that she was telling the truth, but the truth convicted General Wells, Orson Pratt, and the other two witnesses of perjury, and convicted Reynolds of polygamy. It made a clean sweep, and utterly confounded the whole Mormon outfit there present. But a moment's reflection showed that their reserves were intact, and the district attorney, albeit naturally elated at the temporary triumph, remembered that he had yet some eight or nine apparently insurmountable obstacles between him and a verdict of guilty, in the persons of the many hard-headed Mormons in the jury-box. He was evidently at a loss what move to make next. He had won a victory, but how to secure its fruits - this was the dilemma. He looked around in a helpless sort of a way, as if for counsel. Again Mr. Baskin came to the rescue with another card which was handed to the writer, who read it hastily and handed it to the district attorney. He had written, `Do not give the case to the jury tonight, but dismiss them to their homes until morning.' Relying upon the sagacity of the advice, the court adjourned after gravely cautioning the jury to have no conversation with anyone with regard to the trial. Mr. Baskin then gave the reasons for his advice, which in substance were: `The Mormon jurors had advice from Brigham Young to return a verdict of not guilty, which he probably thought would be justified under the failure of the prosecution. These instructions would have been followed at any hazard, the result of which would have been a hung jury. Now, Brigham Young and the Mormons generally believe there is a gentleman here present (alluding to the writer) who represents the federal government, and who will report the details of this trial. The evidence of the last witness was so conclusive that a verdict of acquittal would have been an outrage which might justify the government in instituting more vigorous steps for the suppression of polygamy. The jury being dismissed, the Mormon members of it will get a new set of instructions, and tomorrow will join in a verdict of guilty, while Brigham will depend on the law's delay, and on uncertainties of the courts, to carry his point.'

    "A few minutes later, in a conversation with the judge who presided at the trial, he advanced the same theory, and complemented the district attorney on his tact. Whether the theory was correct or not, the result of the trial fully indicated his sagacity. The cause was submitted without argument the next morning, and in a very short time the jury returned with a verdict of guilty. To Mr. Baskin is due the credit of the conviction of Reynolds in the district court, although he had no direct connection with the case, and the writer trusts he will pardon the mention of his name in connection with the trial. It cannot injure him with the Mormons, as their hatred of him cannot be intensified by any means whatever. Mr. B's instrumentalities in the conviction of Reynolds were not generally known in Salt Lake City, but the recent decision of the supreme court in the case will revive interest and cause all the details of the trial to be read by those who enjoy the study of causes celebres. The trial of Reynolds developed a peculiar trait of the witnesses to protect their peculiar institutions at all hazards, and the unanimity with which they perjured themselves compels the conclusion that there was somewhere a power controlling and directing the current of events in the trial. While the theory with regard to the jury was simply conjecture, yet the conduct of the witnesses in the case certainly justified the belief that the juries, guided by the same mysterious power, would scarcely be expected to prove more virtuous when brought face to face with perjury than the witnesses had been. Polygamy is bad enough in all conscience, but it is simply an incident, a feature of a grand whole, which constitutes one of the most absolute tyrannies under the guise of religion that the sun shines on. It is a disgrace to the government that a colony, the leaders of which ordered and planned the Mountain Meadow massacre, and who have committed hundreds, if not thousands, of as cowardly murders since within the jurisdiction of the federal laws, should be allowed to maintain its organization and flaunt its treason to the world."

    If the alleged agreement between the district attorney, and the Mormon authorities had been made, as the latter parties have always claimed, and, as they have taught that the constitution of the United States is an inspired instrument, they would have thereby impliedly promised to yield obedience to the law against polygamy in case its validity should be sustained by the supreme court of the United States. After the constitutionality of that law was sustained, the Mormon authorities and their adherents still continued to advocate and practice polygamy. When Reynolds returned to Salt Lake City after serving in the penitentiary the term for which he was sentenced, he was met by church officials, not as a criminal who had been convicted and imprisoned for defiantly committing a felony, but in company with those officials, at the head of a large procession of school children and prominent Mormons, was, as a heroic victim of persecution, escorted to his polygamous home.

    Statements similar to those contained in Whitney's history respecting Reynolds were made throughout the Territory by church officials soon after his conviction. The Mormon masses and many Gentiles today are ignorant of the fact that those statements are false. Evidently George Sutherland, a United States senator from Utah is ignorant of that fact, for in his speech in defense of his associate, Reed Smoot, reported in the Congressional Record of January 23, 1907, he said:

    "There never was a prosecution at all under the law (against polygamy) until fourteen years after it was passed. In 1876 a prosecution was commenced against one George Reynolds. Mr. Reynolds himself furnished the testimony necessary to bring about his own conviction, contenting himself by depending upon the sole ground that the law was invalid and unconstitutional, and as being an interference with his mode of religious worship."

    The officials of the Mormon church knew that General Cowan was in the city for the purpose of investigating the Mormon question. The following is an extract from my speech before the judiciary Committee of the House in support of the Edmunds-Tucker bill:

    "If the law of 1862 had been faithfully executed, much of the hardships that must now follow the solution of this question might have been avoided. The Mormons simply paid no attention to that law. And why? Because they knew it was impossible to enforce any penalties: because the jury system at that time was entirely in the hands of the Church Theocracy, and it was impossible to select a jury in that country to find indictments. It was impossible to take the first step in any prosecution. Their position in relation to this law was that it was unconstitutional and that the amendment to the constitution of the United States gave them the right to practice polygamy as a religious rite. That question has been settled. The law of 1862 was passed on in the Reynolds case, so that it is not now an open question, and I simply call attention to it to show the absurdity or insincerity of the claim of these gentlemen. At the passage of the amendment to the constitution on the subject of religious toleration, every State in the Union had laws against polygamy. It was punished by the laws of England from which we derive our common law. Every State in the Union, from the date of the adoption of this amendment, up to the present time, has had laws against it, and every Territory except Utah. These gentlemen say that that amendment was understood and was intended to give them the constitutional right to practice this anti-American, Asiatic system in our republic. Is it not absurd to suppose that this, amendment was intended to give immunity to a practice which was criminal under the statutes of every State by which said amendment was adopted? Just think what that implies. If polygamy is protected by the constitution of Utah, it is also in every State in the Union, and it follows that every man who has been convicted under State laws has been convicted in-violation of the constitution of the United States. Looking at the claim of these gentlemen, saying nothing about the vice involved in their system, in view of the circumstances existing when that amendment of the constitution was passed, I cannot give them credit of sincerity. ¹ It is simply a subterfuge. They state that they made the case of Reynolds to test the constitutionality of the act of 1862. That statement is untrue. They say in that connection `We believe the constitution of the United States is an inspired instrument.' Do not these gentlemen know that in that instrument the manner is laid down in which all disputes may be determined? The clause that all cases arising tinder that constitution shall be submitted to the supreme court, and its decision shall be final upon the question, is as much inspired as any other clause. They say that they made a case to test the constitutionality of this law. Does not that imply an intention to yield the point if the decision should be against them? The decision was against them, but they still insist that the law is unconstitutional, and have continued to treat it as void. Our monogamic system of marriage is just as much a part and parcel of our institutions as any other.

    ¹ On December, 8, 1788 after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the constitution of the United States the declaration of the Bill of Rights that "all men have an equal, natural. and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James 1, including the death penalty, for the commission of polygamy. (12 Hetting's Stat. 691.)

    These men have, under pretext of religious toleration, attempted to engraft on these institutions the Asiatic system of polygamy. I ask, Is it remarkable that the American people should object to that? There is just one of two ways to treat the question, that is either to acknowledge their claim that they have a right to practice polygamy and repeal all laws against it, or to meet and overturn it. The bill known as the Poland bill was passed in 1874, which established the present jury system in the territory. These gentlemen at once raised the question of the validity of that act. Afterwards, what is known as the Edmunds bill was passed. None of these measures settled the matter. As fast as these laws were passed these gentlemen raised the constitutional objection. They carry their cases to the courts, and as often as these are decided against them they insist that the laws are unconstitutional; that they are being persecuted, and that their rights have been invaded; that through prejudice on the part of the country, they are being injured, and that the Gentile population to their midst are seeking to rob and ruin them. In answer to all these things I say that there is not a word of truth in these allegations. In the brief filed on their behalf they arraign everybody who has had anything to do in any shape or form with the execution of the law against polygamy. They even impute improper motives to the supreme court of the United States. They state that the decision of the supreme court on the subject of the Edmunds bill was the result of popular prejudice to which the court yielded. They question the integrity of the legal courts and of every person connected with the execution of the law, however high their standing. They are simply attempting to create sympathy by crying persecution. I undertake to say that there is no desire on the part of the persons intrusted with the execution of these laws to punish innocent men."

    In a sermon by Brigham Young reported in the Journal of Discourses, Vol. IV, page 77, he said:

    "I have many a time on this stand dared the world to produce as mean devils as we can. We can beat them at anything. We have the greatest and smoothest liars in the world; the cunningest and most adroit thieves, and any other shade of character you can mention. We can pick out elders in Israel right here who can beat the world at gambling, who can handle cards, cut and shuffle them with the smartest rogues on the face of God's footstool. I can produce elders here who can shave the smartest shavers, and take their money from them. We can beat the world at any game. We can beat them because we have men here that live in the light of the Lord, that have the holy priesthood, and hold the keys of the Kingdom of God. But you may go through the sectarian world, and you cannot find a man capable of opening the door of the Kingdom of God to admit others in. We can do that. We can pray the best, preach the best, and sing the best. We are the best looking and finest set of people on the face of the earth; and they may begin any game they please, and we are on hand and can beat them at anything they have a mind to begin. They may make sharp their two-edged swords, and I will turn out the Elders of Israel with greased feathers and whip them to death.

    Brigham's assertions are verified in at least two particulars in Whitney's history. Whitney's untruthful statement of the Reynolds case, and his unjust characterization of the action of Judge McKean and myself in the Hawkins case, "was as dishonest as it was despicable."