Mountain Meadows Massacre/Prosecution/Was prosecution blocked by the Church
Critics charge that actions of the institutional Church and/or local Mormons prevented federal officials from prosecuting those guilty of the Mountain Meadows Massacre.
There is no evidence the Church blocked prosecution of the Massacre perpetrators. There is substantial evidence that poor federal organization, infighting, and refusal to deputize LDS lawmen played a role in slowing the process. When presented with evidence by lawful authorities, LDS juries returned indictments.
One reviewer described the difficulties with this theory:
- Blood of the Prophets has charged high-ranking church officials with two decades of obstructing the federal investigation. Bagley's emphasis is in Mormon history, so he sometimes shows his lack of breadth in political and social matters that originate outside the Great Basin. One of the areas in which he displays this weakness is his failure to discuss the effect of President Buchanan's general amnesty upon the massacre prosecutions (p. 205).
- [U.S. President] Buchanan issued an amnesty for all crimes of the Mormons related to the claimed acts of sedition and treason [during the U.S. army's assignment to Utah in the abortive "Utah War"]. Governor Alfred Cumming announced a broad interpretation of that amnesty to the Saints on 14 June 1858. Certainly, by the date of the amnesty, federal officials believed that Mormons had directed the massacre, and they believed that John D. Lee was one of the leaders. One might reasonably conclude that the amnesty was intended to cover the massacre participants.
- Some in the federal government and the press believed that Buchanan intended to pardon the massacre perpetrators. Indian superintendent Jacob Forney was so upset with U.S. District Court Judge John Cradlebaugh's massacre investigation that he cursed Cradlebaugh's name, citing the amnesty as the basis for his objections, or so we are told from a source hostile to Forney. Non-Mormon U.S. District Attorney Alexander Wilson and non-Mormon U.S. District Court Judge Charles C. Sinclair disagreed over the application of the amnesty, with Wilson refusing to present to the jury bills of indictment. Harper's Weekly noted the conflict over the amnesty in the prosecution of the massacre. The New York Post opined that the amnesty excused the massacre crimes because it was an aspect of the Utah war intended to come within the amnesty's scope. It is no wonder that prosecution was uncertain. But, given the controversy the amnesty sparked in the Eastern press with regard to the massacre investigation, it seems that Blood of the Prophets would have discussed it. This is a significant omission.
Disputes between the executive and judicial branches
- The presidential amnesty contributed to the lengthy delay in federal prosecution. In addition, the federal judiciary and federal prosecutor fought over control of the massacre investigation. This internecine dispute stymied federal investigation of the massacre for several years. Bagley does not discuss this feud as a source for delay.
- At the national level in the early nineteenth century, the federal judiciary and the prosecutors repeatedly jockeyed for power in ways that would appear unseemly today. Thomas Jefferson said that the "great object of my fear is the federal judiciary. That body, like gravity, ever acting with noiseless foot & unalarming advance, [is] gaining ground step by step. . . . Let the eye of vigilance never be closed." He condemned the judiciary's usurpation of the legislative prerogatives with its pious interpretation of its own brand of Christianity.55 The U.S. Constitution gives little direction to the judiciary compared to what it gives to the legislative and executive branches. The Hamiltonian Federalists saw the federal judiciary as a way to expand federal power and to crush state self-determinism (read: slavery). The Jeffersonian republicans believed states' rights were paramount except as to powers specifically delegated to the federal government. The Federalist judiciary gained the upper hand with the enforcement of the Sedition Act of 4 July 1798, which crushed Jeffersonian dissent. As historian James Simon explains, their "blatantly partisan actions [of stifling criticism of the John Adams administration] in pursuit of convictions under the Sedition Act reinforced Jefferson's profound distrust of the federal judiciary." Supreme Court Justice Salmon Chase's prosecutions under the Sedition Act, while a sitting Supreme Court justice, were notorious, eventually leading to an attempt to remove him by impeachment.
- Utah's federal judges replayed this high national drama on a frontier stage. As with the amnesty, Blood of the Prophets fails to see the broad political and social issues of the struggle for federal power. Brigham Young's demand for local self-determinism replaced Thomas Jefferson's urbane urge for state self-determinism. Polygamy, rather than slavery, was an affront to federal power and needed to be crushed. In the early days of Utah, federal judges of questionable character—a point Van Vliet conceded—directed the investigation of crime, requested army troops to march against the local citizenry, harangued citizens in their places of worship about the lack of virtue in their plural wives, and testified in Congress about Mormon debauchery. These judicial efforts to crush the Mormon theocracy would be unthinkable today in any social context.
- Blood of the Prophets accepts Cradlebaugh's account of the dispute uncritically, condemning the U.S. district attorney as "pliant" (p. 235) and "'closely allied to the Mormons by some mysterious tie'" (p. 217) for failing to do anything about the massacre. Citing Cradlebaugh and Sinclair, we are told that Wilson's "whole course of conduct has been marked with culpable timidity and neglect." Bagley would have us believe that the U.S. district attorney was too cozy with the Mormons and that the Mormons lobbied him to ignore the massacre.
- The official correspondence, however, shows that the executive and judicial branches of government distrusted each other and that neither was effective in the prosecution of the massacre. The purported investigation began, at least in Cradlebaugh's view, with grand jury proceedings from 8 to 21 March 1859 in Provo. Mormon accounts say Cradlebaugh called out the army to terrorize the local Provo population with the might of federal power. Cradlebaugh and Bagley assert that the troops were necessary to protect the court and witnesses from Mormon Danite assassins. Governor Cumming sided with the Mormons, who were outraged with Cradlebaugh's use of the troops. Cumming believed that he, as the federal executive, had the sole civilian authority to call out the troops in the Territory.
- Attorney General Black in Washington, D.C., said that it was not Cradlebaugh's job to determine whom to prosecute or when to call out the troops. He instructed U.S. District Attorney Wilson to "oppose every effort which any judge may make to usurp your functions. . . . If the judges will confine themselves to the simple and plain duty imposed upon them by law of hearing and deciding the cases that are brought before them, I am sure that the business of the Territory will get along very well."
- President Buchanan approved of Wilson's efforts to resist the judiciary's incursion into his prerogatives and the use of federal troops. General Albert Sidney Johnston, commanding Camp Floyd, implied that he was unhappy being called into the fray to support the judiciary.
- Black attempted to rein in the Utah judges, explaining to them the judiciary's function to "hear patiently the causes brought before them." The executive branch has a "public accuser, and a marshal." As the U.S. Supreme Court said in an 1868 landmark case, public prosecutions are within the exclusive jurisdiction of the U.S. district attorney until indicted offenses are in trial before a petit jury. Judges have no role in prosecutions until then.
- Addressing a defensive letter to President Buchanan, Cradlebaugh and fellow judge Charles Sinclair admitted that "the difficulty [which has] arisen between the judiciary and executive is deeply to be deplored." Nonetheless, the judges attacked Governor Cumming and U.S. District Attorney Wilson for failing to faithfully execute their duties, especially in connection with the 1859 Provo grand jury.
- Cradlebaugh's grasping for prosecutorial power made prosecution nigh impossible. Prosecutors must work with judges to obtain warrants and convene grand juries, but Cradlebaugh would not cooperate. He complained to Buchanan that Wilson refused to execute (i.e., serve) bench warrants for witnesses, but Wilson countered that Cradlebaugh would not give him the warrants for execution. Wilson wanted the massacre grand jury to be empanelled in southern Utah, close to the scene. He also urged the Justice Department to provide funds "to enable the officers of the court to make a patient and thorough search for evidence." Cradlebaugh (remember, he is the judge, not the prosecutor) responded to Wilson's request by traveling to Santa Clara and issuing arrest warrants in 1859. None of them were executed. Why not? Cradlebaugh failed to include in his entourage the person with prosecutorial discretion, the U.S. district attorney. He further refused to respond to Wilson's request for information about the warrants so that they could be served. Cradlebaugh also refused to tell Wilson about his activities in Santa Clara. Blood of the Prophets does not explain how the prosecutor could be expected to prosecute when the judge shuts him out of the process.
- The significance of this episode is unmistakable. The prosecution delayed as it resisted the judiciary's grasping for control of the massacre investigation. This material escapes Bagley.
Mormons would not indict in 1859 grand jury?
- According to Bagley, the 8—21 March 1859 grand jury proceedings in Provo provide a lurid but relevant detour in the story of the massacre prosecutions. He uses the story of the grand jury to show that Mormons obstructed prosecutions by refusing to indict their own for the massacre and for other crimes. The book claims that the grand jury "'utterly refused to do anything'" about the massacre and other crimes against non-Mormons. Thus the federal grand jury "ground to a halt" (p. 218). The implication of Bagley's claim is that church authorities instructed grand jurors to obstruct voting when bills for indictment against Mormons were presented to them. Bagley, however, has missed primary source material which contradicts his conclusions.
- This tale of the grand jury is central to one of Bagley's more salacious themes. Blood of the Prophets paints a picture of a community of priests dripping in gentile blood, with Mormon laity thumbing their noses as federal authorities sought to staunch the flow. Bagley and Cradlebaugh make much of the all-Mormon Provo grand jury's failure to return any criminal indictments, including in the notorious Parrish and Potter case and the Henry Jones case. Blood of the Prophets does not have the facts right in the Henry Jones case, confusing it with a different and unrelated crime. Bagley tells us that church authorities obstructed not only the massacre investigation, but also the investigation of other notorious crimes for which, he says, there were never any indictments (pp. 75—76).
- The official correspondence refutes these claims. Bagley has the facts wrong because he does not rely upon the official files. U.S. District Attorney Wilson's diary (again, it was his duty to bring indictments, not Cradlebaugh's) and his report to the U.S. attorney general indicate that no indictment was obtained from the Provo grand jury for the Mountain Meadows Massacre because none was requested by the U.S. district attorney. Yes, Judge Cradlebaugh may have asked for indictments in his initial charge, but this was an empty request because it was not his lawful request to make. It was U.S. District Attorney Wilson's job alone to control the grand jury's reception of evidence and the timing of decision. Wilson never asked the grand jury to indict for massacre offenses. The grand jury's term was occupied with other crimes, and then Cradlebaugh discharged the grand jury before Wilson could ask the grand jury to act. An army officer, familiar with the proceedings, opined that the reason Cradlebaugh dismissed the grand jury precipitously was not that Cradlebaugh was upset with its performance, but that General Johnston withdrew Cradlebaugh's army escort. In addition, when a second grand jury was empanelled in 1859, no indictments were sought for the massacre. Yet, Bagley would have us believe on the sole basis of Cradlebaugh's claims that the grand juries refused to indict for the massacre.
- Just as Bagley has the facts wrong about the 1859 grand jury's treatment of the Mountain Meadows Massacre, so does he miss important facts about the grand jury's treatment of other crimes. The second 1859 grand jury handed down indictments for the Parrish and Potter and the Henry Jones cases, yet Bagley tells us that no indictments were ever obtained for these crimes.
Church would not help capture fugitives?
- Bagley claims that high Mormon officials refused to cooperate in apprehending the massacre fugitives. For example, Cradlebaugh reports that he told Buchanan that church officials offered to produce fugitives upon condition that the church dictate the composition of the petit juries. Bagley does not tell us that U.S. District Attorney Wilson declared this "an unqualified falsehood." Mormons did no such thing.
- The federal judiciary denied Mormon law enforcement officers the power to assist federal officers in the pursuit of criminal convictions. Governor Cumming complained that the federal judges refused to admit to the bar federal territorial prosecutors. Indeed, Cradlebaugh and fellow judges refused to permit the Mormon territorial attorney (even though he was technically an officer of the United States) to enter their courtrooms and present bills for indictments.
- U.S. District Attorney Wilson attempted to persuade non-Mormon Deputy U.S. Marshal William Rodgers to effect service of process upon massacre participants. Rodgers rebuffed the request, claiming a lack of resources. Then, on 6 August 1858, Wilson told the federal marshal that the Mormon territorial marshal, John Kay, would accomplish the investigations and the arrests. According to Wilson, "Kay was a Mormon, had a knowledge of the country and of the people, and expressed a determination, if legally deputized, to make arrests if possible." But, Rodgers refused to deputize Kay on the ground that Kay "was a Mormon." For the federal government, a crook on the lam was better than a crook collared by a Mormon.
- The federal marshal was also less than diligent, frequently complaining about a lack of pay. However, federal surveyors had no difficulty locating and using the services of the fugitives. The surveyors' accounts mock the progress of the investigation, recounting jokes with and pranks upon the fugitives. Additionally, in 1872, the U.S. attorney general denied a request by the U.S. district attorney to reopen the investigation of the massacre.
- As another example of silly officiousness, immediately prior to Lee's first trial in 1875, lawyers Jabez Sutherland and George C. Bates offered to surrender indictees William Stewart, Isaac Haight, George Adair, and John Higbee in return for accommodating their request for bail. U.S. District Judge Jacob Boreman was incensed with this proposal, refused it, and instead commenced disbarment proceedings against these lawyers. Blood of the Prophets touches on this briefly but not fairly (p. 290). Although a defense lawyer may not shield a fugitive, it is common for fugitives to negotiate the terms of their surrender indirectly through lawyers. Judge Boreman's 13 February 1875 letter to Sutherland and Bates shows that the judiciary petulantly refused to deal with Mormons or even attorneys for Mormons. The judge condemned Sutherland for taking on a Mormon as a client because Mormons have "the very soul of corruption." Boreman's refusal to discuss bail is ironic in light of the bail he later granted Lee.
- Federal judges denied Mormons permission to assist federal officials with criminal prosecutions. These judges considered Mormons as disloyal "foreigners," as un-American, "perverted, oppressed, [and] alien." Mormons could not be trusted to do anything, including fight crime. Avoiding collaboration with the Mormons was of greater social value than justice.
- Bagley fails to report accurately early efforts at apprehension. Skipping over legitimate offers of help, Bagley accuses the church of obstructing justice by frustrating the investigation. That is not appropriate, given the evidence.
Brigham Young took no official action?
- Blood of the Prophets criticizes Brigham Young for doing nothing in his official capacity to prosecute the massacre (p. 379). Young, however, explained that he took no official governmental action against the perpetrators because President Buchanan stripped him of these powers and Governor Cumming possessed all the powers of the executive. Once he was stripped of civil power, the church may have well taken the position that the Mormon prophet's control over wrongdoers was limited to the remedies specified in section 134 of the church's Doctrine and Covenants. Nothing required Brigham Young to hunt down the participants and turn them over to the very powers seeking to jail him for bigamy (see D&C 134:4).
- There is no competent evidence of a Mormon cabal to influence the executive branch to delay prosecution. There is much speculation, but nothing more. The Eastern press occasionally blamed the delay upon the Buchanan and subsequent administrations. The will to prosecute was not there. Both Cradlebaugh and Wilson gave up and left town before the Civil War. [article cited ends here]
- The post-Utah war amnesty led some non-members to believe that the massacre was covered under the presidential amnesty.
- There was a long-running dispute over jurisdiction and tactics between the judiciary and the executive (i.e., federal prosecutor) branches. This had nothing to do with the Mormons, but hampered prosecution.
- Disputes between the above groups also led to difficulties with the army, something also not under Mormon control or influence.
- Judges' meddling in the arrest process made it virtually impossible to properly arrest and indict perpetrators.
- The grand jury in southern Utah was never asked to indict anyone for the Massacre during their first session. When presented with the opportunity, they returned indictments later that same year.
- The Mormons did not, as claimed, insist on the right to dictate who sat on petit juries. Other federal officials declared this to be completely false.
- Federal officials and judges refused to deputize or use LDS lawmen to make arrests.
- The U.S. attorney general refused the district attorney's request to reopen the investigation in 1872—once again, this was beyond the Mormons' control or influence.
- Brigham Young had been relieved of his position as territorial governor. He had no secular authority to directly arrest or charge perpetrators.
- [note] Robert D. Crockett, "A Trial Lawyer Reviews Will Bagley's Blood of the Prophets," FARMS Review 15/2 (2003): 199–254. off-site PDF link Headings and minor punctuation changes for clarity have been added; footnotes have been omitted. Readers are advised to consult the original review.