Indictment Against President Young
When these perverters of the law had things arranged to their liking they prepared to conduct a crusade against the Church. President Young was indicted by this hand-picked grand jury for “lewd and lascivious cohabitation.” He was later admitted to bail by Judge McKean in the sum of five thousand dollars.
“A System on Trial”
Arguments were made before the court to quash the indictment, which consumed several days, but Judge McKean rendered a decision in which he said:
“Let the counsel on both sides, and the court also keep constantly in mind the uncommon character of this case. The supreme court of California has well said, ‘Courts are bound to take notice of the political and social conditions of the country 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 title is ‘Federal Authority versus Polygamic Theocracy.’ The government of the United States, founded upon a written Constitution, finds within its jurisdiction another government claiming to come from God—imperium in imperio—whose policy and practices are, in grave particulars, at variance with its own. The one government arrests the other, in the person of its chief, and arraigns it at this bar. A system is on trial in the person of Brigham Young. Let all concerned keep this fact steadily in view; and let that government rule without a rival which shall prove to be in the right.”
The motion being overruled the defendant pleaded not guilty, and further proceedings were postponed for future action. Among the attorneys defending President Young were Thomas Fitch and Charles H. Hempstead, non-“Mormons.” The latter was formerly captain of the California volunteers and editor of the Vedette, the first anti-“Mormon” paper in Utah. He resigned the office of United States district attorney because of the wicked and malicious methods in which the federal courts in Utah were conducted, and became legal counsel for President Young.
Throughout the entire country the attitude and remarks of Judge McKean were severely criticized for attempting to prosecute the Church in the case of Brigham Young and punish him for the alleged “evils of a system.”
Unexpected Calling of the Case
Having been given to understand that his case would not be called until the spring term of court, President Young, who was in ill-health, went to St. George to spend the winter. His leading attorney, Thomas Fitch, also departed for the East. No sooner had Judge McKean learned of the departure of President Young than he set the date for the trial for the 20th of November. Attorney Hempstead protested, and asked for further time on the ground that it was not understood that the case would be called. Mr. Baskin, the prosecutor, demanded a forfeiture of the bond because the defendant was not present, but Judge McKean granted a stay until December 4, and later to the 9th of January, 1872. It was published by the Associated Press that Brigham Young had forfeited his bond and had fled from justice, and every lie imaginable to his injury was presented to the people of the United States. Although he was sick and it was bitter winter weather, President Young, over the protest of his brethren, returned to Salt Lake City, to face trial before the unfriendly court. In the meantime, however, Mr. Baskin who had been improperly appointed district attorney, was replaced by George C. Bates.