While it seems too monstrous for belief that a United States judge should make such remarks as these, it is a stubborn fact, borne out by the records of the proceedings of his court, that James B. McKean did all he threatened to do in the above reported conversation.
His first attack was upon the Territorial attorney-general and marshal, both of whom, without the authority of law, were pushed out of office and their duties performed by the United States district attorney and marshal. The next step was to ignore the Territorial statutes providing for the impanelling of grand and petit jurors; and authorizing the United States marshal to select them at his own pleasure. The result was packed juries of pronounced anti-Mormons, chosen to convict the Church leaders. One more step and the machinery of the court was ready for the evidently contemplated judicial crusade; the United States prosecuting attorney having resigned, Judge McKean appointed as his successor R. N. Baskin, a man as bitter in his hatred of the Church of Jesus Christ and its chief officers as the judge himself; and not one whit behind him in recklessness. This appointment was made in violation of law, since only the President of the United States with the consent of the senate, has power to appoint that officer.
The machinery all being ready, a number of indictments were found against men high in authority in the Church, under an old Territorial statute defining and punishing adultery. It was notorious throughout the United States that if these men in their polygamous relations were guilty of any offense at all, it must have been the violation of the anti-polygamy laws of Congress, and not the aforesaid Territorial law enacted by a legislature the members of which were chiefly polygamists.
Among those indicated under this regime was President Brigham Young, against whom an indictment with sixteen separate counts was found. Each count constituting a separate offense. He appeared in court to answer to these charges; and the judge in over-ruling a motion to quash the indictment took occasion to say:
"Courts are bound to take notice of the political and social condition of the country which they judicially rule. It is therefore proper to say, that while the case at bar is called 'The People versus Brigham Young,' its other and real name is 'Federal Authority versus Polygamous Theocracy."'
Public sentiment was outraged by the high-handed measures of Judge McKean. Popular excitement ran high. For a time there was a threatened collision between the court and the people. It was at this juncture that Elder Taylor published five letters in the Deseret News, reviewing the situation in Utah, and denouncing the Territorial government as un-American in principle and oppressive in its operation; but at the same time warned the people against violent resistance to the court, insolent and oppressive as it was.
He was in court with President Young when Judge McKean made the statement: "It is therefore proper to say that while the case at bar is called 'The People versus Brigham Young,' its other and real name is 'Federal Authority versus Polygamous Theocracy.' * * A system is on trial in the person of Brigham Young." This he took for his text in the letters above referred to, and interpreted it to mean, which it did, that war was declared against the Church of Jesus Christ. "Stripped of all its tinsel and wrappings," said he, "it simply resolves itself into this: that the government of the United States is at war with the Church of Jesus Christ of Latter-day Saints."
Elder Taylor then proceeds to show that in making war on a system of religion, the great principle of religious liberty itself is threatened, and that such a crusade as that foreshadowed in the declaration of Judge McKean, could but end in disaster to the liberties of the people.
Giving himself wide latitude in the discussion, he inquired into the principles underlying American institutions, and from that inquiry arrives at the following conclusion:
"The whole foundation and superstructure of American ethics or jurisprudence is based upon the popular will. That its executive, legislative and judicial powers originate with the people, and that the people having granted to the men of their choice, certain powers, agencies and authorities, to act for and in their behalf; limiting all of them by the provisions of the Constitution which all of them take an oath to support, they reserve to themselves, to their state or to 'the people,' all the remainder.