Tuesday, October 20, 2009

GQC: Surrender and Sentencing on Unlawful Cohabitation Charges

On February 7, 1887, in In Re Snow, 120 U.S. 274 (1887), the U. S. Supreme Court heard Lorenzo Snow’s denial of a petition for a writ of habeus corpus. He had served one of his three sentences. The Court overturned the segregation policy. It ruled that since cohabitation is a living or dwelling together, it was inherently a continuous offense, and not one consisting of an isolated act. If segregation were allowed, there would be nothing to prevent making each week a separate offense. Under those conditions Snow’s 35 months of proved cohabitation could have resulted in imprisonment for 74 years and fines amounting to $49,000. “It is to prevent such an application of penal laws, that the rule was obtained that a continuing offense of the character of the one in this case can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted.” This was the last constructional case involving the Edmunds Act.

On March 3, 1887, Congress passed the Edmunds-Tucker Act without the signature of President Cleveland. It provided for immediate compulsory attendance of witnesses without a previous subpoena being necessary, and it permitted, but did not compel, wives to testify against their husbands. Certificates had to be issued for marriages performed. Illegitimate children born at least a year after the Act were disinherited. The attorney general was to escheat all property (houses of worship excepted) beyond $50,000 owned by the Church, for the use of the schools in the territory. As an example, the Perpetual Emigrating Fund was to be abolished and the proceeds on hand were to be used for the common schools. The courts had the right to examine all books and documents of the trustees of the Church. The legal incorporation of the Church was dissolved, female suffrage in Utah was terminated, seats in the legislative assembly were to be redistributed by the governor, secretary and the Utah Commission. Voting, holding office, and jury service were all conditional upon signing a test oath pledging obedience and support of the anti-bigamy law. The territorial supreme court was to replace the school superintendent with another who would prohibit sectarian instruction. The Nauvoo Legion and local militia laws were abolished.

On July 25, 1887, President John Taylor died in obscurity while hiding from U.S. marshals at the home of a friend in Kaysville, 2 ½ years after his last public utterance. George wrote in his journal this date: “I felt that I had lost the best friend I had on earth; for he had been as a father to me in early life…To him I owe many things which impressed me in my boyhood and youth…He was a man whom I admired very greatly. I thought him the most perfectly controlled man, in the days when I lived with him, that I ever met. His independence of character…made a great impression upon my mind…Our associations since the First Presidency was organized, in October, 1880, have been always pleasant and agreeable. I may have differed from him upon some points; but I have always submitted to his judgment, as my head…I have always viewed him as one of the most noble men that have lived in this generation – a man whose integrity and valor, steadfastness and devotion to the Gospel have not been surpassed in those days.”

Previously, after George and Joseph F. Smith became counselors to John Taylor in the First Presidency, other apostles were called to fill their places in the Quorum of the Twelve. With President Taylor’s death the remaining apostles had to decide whether to accept Cannon and Taylor back into the quorum and increase its size beyond twelve members. If they were readmitted, would they retain their former ranking or would their ranking be based upon their re-entry date? On August 3, 1887, Wilford Woodruff met at 10 a.m. with the following members of the Quorum of the Twelve: Lorenzo Snow, Franklin D. Richards, Moses Thatcher, John Henry Smith, Frances M. Lyman, Heber J. Grant, John W. Taylor, George Q. Cannon and Joseph F. Smith, to decide those issues. “A Vote was taken to reinstate George Q Cannon & Joseph F Smith into their former place into the Quorum of the Twelve Apostles.” The Quorum of the Twelve began to direct the affairs of the Church without an organized First Presidency. However, Wilford Woodruff asked George to “stay around and help all I could...that he felt unable to attend to the business, as it was all new to him. I was familiar with it, and he would be very much pleased to have me assist him.” President Woodruff told Abraham Cannon, “Your father has got the biggest brain and the best mind of any man in the kingdom, without exception.”

In the spring of 1888, Frank J. Cannon and Abraham Cannon, sons of George, secretly traveled nine miles one evening from Salt Lake City to Bountiful to meet their father “who was concealed ‘on the underground…’” They were driven by Charles Wilcken, a good friend of their father. Frank, then age 29, summarized what his father said as follows:

I have sent for you my son, to see if you cannot find some way to help us with our difficulties. I have made it a matter of prayer, and I have been led to urge you to activity. You have never performed a Mission for the Church, and I have sometimes wondered if you cared anything about your religion. You have never obeyed the celestial covenant, and you have kept yourself aloof from the duties of the priesthood, but it may have been a providential overruling. I have talked with some of the brethren, and we feel that if relief does not soon appear, our community will be scattered and the great work crushed. The Lord can rescue us, but we must put forth our own efforts. Can you see any light?’…[H]e proceeded to a larger consideration of the situation, in words which I cannot pretend to recall, but to an effect which I wish to outline-because it not only accounts for the preservation of the Mormon people from all their dangers, but contains a reason why the world might have wished to see them preserved.…It would be a cruel waste of human effort,’ he said, ‘if, after having attained comfort in these valleys-established our schools of art and science-developed our country and founded our industries-we should now be destroyed as a community, and the value of our experience lost to the world. We have a right to survive. We have a duty to survive. It would be to the profit of the nation that we should survive.’ But in order to survive, it was necessary to obtain some immediate mitigation of the enforcement of the laws against us. The manner in which they were being enforced was making compromise impossible, and the men who administered them stood in the way of getting a favorable hearing from the powers of government that alone could authorize a compromise. It was necessary to break this circle; and my father went over the names of the men in Washington who might help us. I could marvel at his understanding of these men and their motives, but we came to no plan of action until I spoke of what had been with me a sort of forlorn hope that I might appeal to President Cleveland himself…‘It’s true that your youth may make an appeal-and the fact that you’re pleading for your relatives, while not yourself a polygamist. But he would immediately ask us to abandon plural marriage, and that is established by a revelation from God which we cannot disregard…No. I can make no promise. I can authorize no pledge. It must be for the Prophet of God to say what is the will of the Lord. You must see President Woodruff, and after he has asked for the will of the Lord I shall be content with his instruction.’…

They talked until midnight.

Frank anticipated that he would be summoned by President Woodruff, but he was not. Eventually his brother Abraham brought word from President Woodruff that Frank must be “guided by the spirit of the Lord.” Frank did talk to Joseph F. Smith at his father’s request.

Frank decided to contact Abraham S. Hewitt, the mayor of New York City who had been a friend of George Q. in Congress. Frank describes that experience as follows:

I took my place…in the long line of applicants waiting for a word with the man…There must have been fifty men ahead of me…They came to his desk, spoke, and passed with a rapidity that was ominous. As I drew nearer, I watched him anxiously, and saw the incessant, nervous, querulous activity of eyes, lips, hands, as he dismissed each with a word or a scratch of the pen, and looked up sharply at the next one. ‘Well young man,’ he greeted me, ‘what do you want?’ I replied: ‘I want a half hour of your time.’ ‘Good God,’ he said, in a sort of reproachful indignation, ‘I couldn’t give it to the President of the United States.’…’Mr. Hewitt,’ I said, ‘it’s more important even than that. It’s to save a whole people from suffering-from destruction.’…’Who are you?’ ‘I’m the son of your old friend in Congress, George Q. Cannon of Utah,’ I said. ‘My father’s in exile. He and his people are threatened with endless proscriptions. I want time to tell you.’ His impatience had vanished. His eyes were steadily kind and interested. 'Can you come to the Board of Health, in an hour? As soon as I open the meeting, I'll retire and listen to you.’…As soon as he had opened the meeting, we withdrew together to a settee…and I began to tell him…the desperateness of the Mormon situation. ‘Yes,’ he said, ‘but why can’t your people obey the law?’…I explained…that no proscription, short of extermination outright, could overcome their resistance; but what force could not accomplish, a little sensible diplomacy might hope to effect. No first step could be made, by them, towards a composition of their differences with the law so long as the law was administered with a hostility that provoked hostility. But if we could obtain some mitigation of the law’s severity, the leaders of the Church were willing to surrender themselves to the court…and a sense of gratitude for leniency would prepare the way for a recession from their present attitude of unconquerable antagonism…He asked: ‘do you know President Cleveland?’ I told him that I had seen the President several times but was not known to him. ‘Well,’ he said, ‘I may be able to help you indirectly. I don’t care for Cleveland, and I wouldn’t ask him for a favor if I were sinking. But tell me what plan you have in your mind, and I’ll see if I can’t aid you-through friends.’ I replied that I hoped to have some man appointed as Chief Justice in Utah who should adopt a less rigorous way of adjudicating upon the cases of polygamists; but that before he was selected-or at least before he knew of his appointment-I wished to talk with him and convert him to the idea that he could begin the solution of ‘the Mormon question’ by having the leaders of the community come into his court and accept sentences that should not be inconsistent with the sovereignty of the law but not unmerciful to the subjects of that sovereignty. ‘The man you want,’ Mr. Hewitt said, ‘is here in New York - Elliot F. Sandford. He’s a referee of the Supreme Court of this state - a fine man, great legal ability, courageous, of undoubted integrity. Come to me tomorrow. I’ll introduce you to him.’

Mayor Hewitt contacted Elliot Sandford and gave Frank a letter of introduction to him. Frank visited Sandford and described his visit as follows:

He received me in his outer office, with a manner full of kindliness but non-committal…He was a tall, dignified man, his hair turning gray - thoughtful, judicial - evidently a man who was not quick to decide. He led me into his private room, and sat down with the air of a lawyer who has been asked to take a case and who wishes first to hear all the details of the action. I began by describing the Mormon situation as I saw it in those days: that the Mormons were growing more desperately determined in their opposition, because they believed their prosecutors were persecuting them; that the District Attorney and his assistants were harsh to the point of heartlessness, and that Judge Zane…acted like a religious fanatic in his judicial office;…I did not really reach his sympathy until I spoke of the court system in Utah - the open venire, the employment of ‘professional jurors’ - the legal doctrine of ‘segregation,’ under which a man might be separately indicted for every day of his living in plural marriage - and the result of all this: that the pursuit of defendants and the confiscation of property had become less an enforcement of law than a profitable legal industry. After two hours of argument and examination, I ended with an appeal to him to accept the opportunity to undertake a merciful assuagement of our misery…[H]e might have the distinction of calling into his court the Mormon leaders who had been most long and vainly sought by the law; and by sentencing them to a supportable punishment, he could begin the composition of a conflict that had gone on for half a century. He replied with reasons that expressed a kindly unwillingness to undertake the work. It would mean the sacrifice of his professional career in New York. He would be putting himself entirely outside the progression of advancement. His friends, here, would never understand why he had done it. The affairs of Utah had little interest for them…His wife had been waiting some minutes in the outer office; he proposed that he should bring her in…[When] Mrs. Sandford…entered,…Her first question [was:]…how did the women endure it? I repeated a conversation I had once had with Frances Willard, who had said: ‘The woman’s heart must ache in polygamy.’ To which I had made the obvious reply: ‘Don’t women’s hearts ache all over the world? Is there any condition of society in which women do not bear more than an equal share of the suffering?’ Mrs. Sandford asked me pointedly whether I was living in polygamy? No, I was not. Did I believe in it? I believed that those did, who practised it. Why didn’t I practise it? Those who practised it believed that it had been authorized by a divine revelation. I had not received such a revelation. I did not expect to. Our talk warmed into a very intimate discussion of the lives of the Mormon people…I took advantage of her curiosity to lead up to an explanation of how the proscription of polygamy was driving young Mormons into the practice, instead of frightening them from it. And so I arrived at another recountal of the miserable condition of persecution and suffering which I had come to ask her husband help us relieve; and I made my appeal again, to them both, with something of despair…It did not seem that I had reached her - until she turned to him, and said unexpectedly ‘It seems to me that this is an opportunity - a larger opportunity than any I see here - to do a great deal of good.’ He did not appear as surprised as I was. He made some joking reference to his income and asked her if she would be willing to live on a salary of - How much was the salary of the Chief Justice of Utah? I thought it was about $3,000 a year. ‘Two hundred and fifty dollars a month,’ he said. ‘How many bonnets will that buy?’ ‘No,’ she retorted, ‘you can’t put the blame on my millinery bill. If that’s been the cause of your hesitation, I’ll agree to dress as becomes the wife of a poor but upright judge.’ In such a happy spirit of good-natured raillery, my petition was provisionally entertained, till I could see the President; and it is one of the curiosities of experience, as I look back upon it now, that a decision so momentous in the history of Utah owed its induction to the wisdom of a woman and was confirmed with a domestic pleasantry. I left them after we had arrived at the tacit understanding that if President Cleveland should make the appointment, Mr. Sandford would accept it with the end in view that I had proposed.

Frank went back to Abraham Hewitt to tell him of his success and to discuss the best way to approach President Cleveland. Hewitt told Frank that President Cleveland was honest, but that he would have “to be persistent, patient, and-lucky. ‘You’ll have to be lucky, if you intend to persuade him to acquire any information. He’s been so successful in instructing mankind that it’s hard to get him to see he doesn’t know all he ought to know about a public question. But he’s honest and he’s courageous. If you can convince him that your view is right, he’ll carry out the conviction in spite of everything. In fact he’ll be all the better pleased if it requires fearlessness and defiance of general sentimentality to carry it out.’” Hewitt gave Frank a letter to William C. Whitney, the Secretary of the Navy, asking him to obtain for Frank an interview with President Cleveland.

Frank met William C. Whitney and Whitney arranged for a meeting that afternoon with Colonel Daniel S. Lamont, President Cleveland’s secretary and political trainer. Frank described that meeting as follows:

I found at once that Colonel Lamont understood the situation in Utah, thoroughly….He seemed surprised at my assurance that my father and the other proscribed leaders of the Church would submit themselves to the courts if they could do so on the conditions that I proposed; I convince him of the possibility by referring him to Mr. Richards, the Church’s attorney in Washington, for a confirmation of it. I pointed out that if these leaders surrendered, president Cleveland could be made the direct beneficiary, politically, of their composition with the law….I was doubtful whether I should tell Colonel Lamont and Mr. Whitney of my conversation with Mr. Sandford. I decided that their considerations entitled them to my full confidence, and I told them all-begging them, if I was indiscreet or undiplomatic, to charge the offence to my lack of experience rather than to debit it against my cause. They passed it off with banter. It was understood that the President should not be told - and that I should not tell him - of my talk with Mr. Sandford. Colonel Lamont undertook to arrange an audience with Mr. Cleveland for me. ‘You had better wait,’ he said, ‘until I can approach him with the suggestion that there’s a young man here, from Utah, whom he ought to see.’…

Two days later, Frank received word from Colonel Lamont and went to the White House. Colonel Lamont led him into President Cleveland’s office and Frank described the meeting as follows:

Mr. Cleveland was working at his desk. Colonel Lamont introduced me by name, and added, ‘the young man from Utah, of whom I spoke.’ The President did not look up. He was signing some papers, bending heavily over his work. It took him a moment or two to finish; then he dropped his pen, pushed aside the papers, turned awkwardly in his swivel chair and held out his hand to me. It was a cool, firm hand, and its grasp surprised me, as much as the expression of his eyes-the steady eyes of complete self-control, composure, intentness. I had come with a prejudice against him; I was a partisan of Mr. Blaine, whom he had defeated for the Presidency; I believed Mr. Blaine to be the abler man. But there was something in Mr. Cleveland’s hand and eyes to warn me that however slow-moving and even dull he might appear, the energy of a firm will compelled and controlled him. It stiffened me into instant attention. He made some remark to Colonel Lamont to indicate that our conversation was to occupy about half an hour. He asked me to be seated in a chair at the right-hand side of his desk. He said almost challengingly: ‘You’re the young man they want I should talk to about the Utah question.’ The tone was not exactly unkind, but it was not inviting. I said, ‘Yes, sir.’ He looked at me, as a judge might eye the suspect of circumstantial evidence. ‘You’re the son of one of the Mormon leaders.’ I admitted it. And then he began. He began with an account of what he had done to compose the differences in Utah. He explained and justified the appointments he had made there - appointments that had been recommended by Southern senators and representatives who, because they were Southerners, were opposed to the undue extension and arbitrary use of Federal power. He had made Caleb W. West of Kentucky governor of Utah on the recommendation of Senator Blackburn of Kentucky, my father’s friend. He had made Frank H. Dyer, originally of Mississippi, United States Marshal. He had appointed a District Attorney in whom he had every confidence. He had a right to believe that these men, recommended by the statesmen of the South, would execute and adjudicate the laws in Utah according to the most lenient Southern construction of Federal rights. He dwelt upon Governor West’s charitable intentions towards the Mormon leaders, went over West’s efforts at pacification in accurate detail, and told of West’s chagrin at his failure-with an irritation that showed how disappointed he himself was with the continued recurrence of the Mormon troubles. I had to tell him that the situation had not improved, and his face flushed with an anger that he made no attempt to conceal. He declared that the fault must lie in our obstinate determination to hold ourselves superior to the law. He could not sympathize with our sufferings, he said, since they were self-inflicted. He admitted that he had once been opposed to the Edmunds-Tucker bill, but felt now that it was justified by the immovability of the Mormons. All palliatives had failed. The patience of Congress had been exhausted. There was no recourse, except to make statutes cutting enough to destroy the illegal practices and unlawful leadership in the Mormon community. ‘Mr. President,’ I pleaded, ‘I’ve lived in Utah all my life. I know these people from both points of view. You know of the situation only from Federal office holders who consider it solely with regard to the official responsibility to you and to the country. Why not learn what the Mormons think?’ He replied that it was not within the province of the President…to consider the mental attitude of men who were opposing the enforcement of the law….For an hour, he continued, with vigor and dignity, to describe the situation as he saw it; and he chilled me to the heart with his determination to concede nothing more to a community that had refused to be placated by what he had already conceded. I listened without trying, without even wishing, to interrupt him; for I had been warned by Mr. Whitney and Colonel Lamont that it would be wise to let him deliver himself of his opinion before attempting to influence him to a milder one; and I could not contradict anything that he said, for he made no misstatements of fact. Colonel Lamont had entered once, and had withdrawn again when he saw that Mr. Cleveland was still talking. At the end of about an hour, the President rose. ‘Mr. Cannon,’ he said, ‘I don’t see what more I can do than has already been done. Tell your people to obey the law, as all other citizens are required to obey it, and they’ll find that their fellow-citizens of this country will do full justice to their heroism and their other good qualities. If the law seems harsh, tell them that there’s an easy way to avoid its cruelty by simply getting out from under its condemnation.’ His manner indicated that the conference was at an end. He reached out his hand as if to drop the subject then and forever, as far as I was concerned. ‘Mr. President,’ I asked, with the composure of desperation, ‘do you really want to settle the Mormon question?’ He looked at me with the first gleam of humor that had shown in his eyes-and it was a humor of peculiar richness and unction. ‘Young man,’ he asked,’ what have I been saying to you all this time? What have I been working for, ever since I first took up the consideration of this subject at the beginning of my term?’ ‘Mr. President,’ I replied, ‘if you were traveling in the West, and came to an unbridged stream with your wagon train, and saw tracks leading down into the water where you thought there was a ford, you would naturally expect to cross there, assuming that others had done so before you. But suppose that some man on the bank should say to you: ‘I’ve watched wagon trains go in here for more than twenty years, and I’ve never yet seen one come out on the other side. Look over at that opposite bank. You see there are no wagon tracks there. Now, down the river a piece, is a place where I think there’s a ford. I’ve never got anybody to try it yet, but certainly it’s as good a chance as this one!’ Mr. President, what would you do? Would you attempt a crossing where there had been twenty years of failure, or would you try the other place-on the chance that it might take you over?’ He had been regarding me with slowly fading amusement that gave way to an expression of grave attention. ‘I’ve been watching this situation for several years,’ I went on, ‘and it seems to me that there’s the possibility of a just, a humane, and a final settlement of it, by getting the Mormon leaders to come voluntarily into court - and it can be done! - with the assurance that the object of the administration is to correct the community evil - not to exterminate the Mormon Church or to persecute its’ prophets,’ but to secure obedience to the law and respect for the law, and to lead Utah into a worthy statehood.’ I paused. He thought a moment. Then he said: ‘I can’t talk any longer, now. Make another appointment with Lamont. I want to hear what you have to say.’ And he dismissed me.

Colonel Lamont told Frank to come back the next afternoon and Frank worked on his arguments, to make them as concise as possible. The next day Colonel Lamont congratulated Frank and told him he had “aroused” the President’s “curiosity.” He made another appointment with the President several days later. Frank described that meeting (and subsequent meetings) as follows:

When I entered the President’s office…I found Mr. Cleveland at his desk, as if he had not moved in the interval, laboriously reading and signing papers as before…But as soon as he turned to me, I found him another man. He was interested, receptive, almost genial. He gave me an opportunity to cover the whole ground of my case, and I went over it step by step. He showed no emotion when I recited some of the incidents of pathetic suffering among our people; and at first he seemed doubtful whether he should be amused by the humorous episodes that I narrated. But I did not wish merely to amuse him; I was trying to convey to his mind…that so long as a people could suffer and laugh too, they could never be overcome by the mere reduplication of their sufferings. He looked squarely at me, with a most determined front, when I told him that the Mormons would be ground to powder before they would yield. ‘They can’t yield,’ I warned him. ‘They’re like the passengers on a train going with a mad speed down a dangerous grade. For any of them to attempt to jump is simple destruction. They can only pray to Providence to help them. But if that train were to be brought to a stop at some station where they could alight with anything like self-respect, there would be many of them glad to get off - even though the train had not arrived at its ‘revealed’ destination.’ I do not remember…the exact sequence and progression of argument in this interview and the dozen others that succeeded it. Mr. Cleveland became more and more interested in the Mormon people, their family life, their religion, and their politics. He was as painstaking in acquiring information about them as he was in performing all the other duties of his office. I might have been discouraged by the number and apparent ineffectiveness of my interviews with him, had not Colonel Lamont kept me informed of the growth of the President’s good feeling and of his genuinely paternal interest in the people of Utah. It became more than a personal desire with Mr. Cleveland to benefit politically by a settlement of the Mormon troubles, if indeed he had ever had such a desire. His humanity was enlisted, his conscience appealed to. He asked me, once, if I knew anything of Mr. Sandford, and I replied that I knew him and believed in him. He told me, at last, that he was going to appoint Mr. Sandford Chief Justice of Utah, and added significantly, ‘I suppose he will get in touch with the situation.’

Frank went back to New York to meet with Sandford and to “renew the understanding” he had with him.

On July 9, 1888, Sandford was appointed Chief Justice of Utah. He arrived in Salt Lake City on August 26th. In early September, George’s attorney, Franklin S. Richards, began negotiations for George’s surrender. He initially insisted that he be given a fair trial, with no favors and no prejudice against him. In his journal for September 12, 1888, George notes, “I do not wish to be discriminated against because of my prominence, neither do I wish to be treated more rigorously, if sentenced to prison, than other prisoners.” He also insisted that his wives not be called as witnesses. Further negotiations led to an agreement that George would plead guilty to two counts of unlawful cohabitation, one being quashed and the other for which he would receive a full sentence and a fine. On September 17th, George went before Judge Sandford in court and pled guilty to two indictments of unlawful cohabitation. He was fined $450 and sentenced to the penitentiary for 175 days. His example was followed by a number of prominent Mormons, including Francis M. Lyman, another member of the Quorum of the Twelve. Wilford Woodruff recorded in his journal: “This is an important day in our History[.] President George Q Cannon was indicted on Saturday again for Cohabitation and this Morning he went into Court and Delivered himself up to the Court & Plead guilty to the Indictment and the Court sentenced him on the first Count 75 days imprisonment & $200 dollars fine and the second Count 100 days & $250 dollars fine total 175 days imprisionment & $450 dollars fine. He was taken in to the Penitentiary by Marshal Dyer who was accompanied by C. W. Wilkin[,] H. B Clawson & James Jack. The Marshal told the Warden to treat him Kindly. He will have all the Privileges the rules Can afford. We Parted in good spirits. This leaves me in a Measure alone for 5 Months but I will do the best I Can.”

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