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Utah's Constitution: A Reflection of the Territorial Experience

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Utah's Constitution: A Reflection of the Territorial Experience


BETWEEN 1849 AND 1895 UTAHNS DRAFTED NO LESS THAN SEVEN constitutions before Congress finally admitted the state into the Union in 1896.1 Though each of the constitutions differed in detail, each of them drew on one of three models. The first three constitutions drafted in 1849, 1856, and 1862 relied principally on the Iowa Constitution of 1846 as their model.2 Those of 1872, 1882, and 1887 borrowed from the Nevada Constitution of 1864.3 Delegates to the 1895 convention used an eclectic model. They drew on the previous six constitutions—especially the last three, but they also relied on numerous other constitutions especially those of Washington, Idaho, Montana, California, New York, Colorado, and Wyoming for various provisions.4

In addition, while the delegates drew their general framework from other constitutions, they included in each of them certain measures to answer local concerns For instance, the constitution of 1872 adopted woman suffrage and provided for a system of proportional representation that would probably have guaranteed the election of at least some non-Mormons to the legislature. The 1872 constitution also tried to address objections to polygamy by declaring that the territory would accept any provisions that Congress wished to impose if the majority of Utah citizens approved them in a referendum.5 The 1882 constitution also granted woman suffrage and provided that the state's school system would remain free of sectarian influence.6 The 1887 constitution established an item veto, guaranteed religious freedom for schoolteachers, and set up a juvenile correction system. It also prohibited the practice of polygamy and forbade the amendment of the antipolygamy article without congressional approval.7 The 1895 constitution granted woman suffrage, as other western states such as Wyoming, Idaho, and Montana had previously done, but it generated heated debate. Ultimately, over the objections of a sizeable minority, mostly made up of Protestant Republicans, the delegates adopted woman suffrage and rejected a proposal to submit the article for a separate vote.8 The convention also drew on numerous sources, particularly its practical experience with water use and with an 1880 law on appropriation and irrigation.9

Previous scholars such asJerome Bernstein,John J. Flynn, Stanley S. Ivins, Martin B. Hickman, and Gordon M. Bakken have written extensively about the sources of the Utah State Constitution.10 They have generally recognized that certain customs influenced Utah's constitutional tradition. Although observers like Bernstein, Ivins, and Bakken have cited local conditions as catalysts for various constitutional provisions and others like Flynn and Hickman have specified the federal and state constitutional traditions as major sources, none have explicitly seen the 1895 constitution as the fruit of the political, social, and economic experience of Utahns with territorial government.

In fact, Hickman, perhaps the principal interpreter of Utah constitutional law and a man I admired and considered a close friend during his lifetime, believed that although "the Utah constitution shares [an] . . . indebtedness to the past with every other written constitution. ... it is not to Utah's political and social history as a territory that one must look for the origins of the Utah constitution."11 He argued instead that the legacy of the federal and state constitutions influenced Utahns, particularly in the adoption of such features as three branches of government, bicameralism, checks and balances, separation of powers, and a bill of rights. I believe he is right about these influences. He also argued—again rightly—that the Utah Constitution bore the stamp of the Progressive tendency during the late nineteenth and early twentieth centuries to include provisions expected to correct some problems caused by the mistreatment of employees and abuse of the community by powerful and impersonal business corporations.12

In interpreting the sources of the Utah Constitution, Hickman and Flynn also pointed to the influence on Utah of changes in state constitutions during the nineteenth century. During the nineteenth century citizens of various states became increasingly outraged by the corruption of their legislatures by powerful interests. In a rush to promote economic development, states and municipalities had borrowed money for schemes to invest in canals and railroads that made little practical business sense. The panic of 1837 and the succeeding depression left many states hard pressed to pay their debts, and the economic collapse bankrupted a number of municipalities.

By the late nineteenth century the open venality of legislators and governors also horrified the drafters of constitutions. Fearful of the consequences of unrestricted power, members of constitutional conventions tried to control the tendency of legislators and governors to accept bribes and "campaign contributions" in return for favors to business corporations. They generally tried to counter such corruption by limiting legislative discretion and establishing boards of examiners to review state expenditures by executive departments.13

These authorities will find no disagreement with me about those sources of features of Utah's 1895 constitution. Clearly Utahns drew on the federal experience, the experience of other states, and the Progressive movement for its various provisions. Nevertheless, in contrast to some of these authorities, I will argue that Utahns also drew on their territorial political, social, and economic experience for various provisions of the 1895 constitution. I must hasten to add, however, that I read Utah's territorial history quite differently than previous scholars.

At the outset we must understand that Utah became increasingly less a Mormon commonwealth, especially between 1870 and 1890 In 1870 Mormons still made up 98 percent of Utah's population. In the next twenty years, with the growth of mining, railroading, and commerce, the composition of the population changed so dramatically that by 1890 Protestants, Catholics, Jews, Orthodox, Buddhists, and sundry others constituted nearly 44 percent of Utah's citizenry. That was a larger percentage than at present.14 Impelled by the growth of the non-Mormon population, as early as 1888 Mormons began to share power with non-Mormons in city governments in Ogden and Salt Lake City (at times with LDS General Authority approval), nonMormons controlled the local governments in most of Utah's mining towns, and non-Mormons soon began to sit in the territorial legislature.15 Moreover, beginning in 1872 non-Mormons sat in each of the constitutional conventions.

Historians generally cite the breakup of the Mormon People's party and anti-Mormon Liberal party as landmark events Landmark events these breakups undoubtedly were, but they also ratified a condition that already existed That is, by the early 1890s Utahns increasingly relied on conditions other than religion to dictate political, social, and economic preferences.16

By the time of the state constitutional convention in 1895, on a number of crucial matters, the division between Republicans and Democrats became more significant than the division between Mormons and non-Mormons. Perhaps the most striking RepublicanDemocratic cleavage appeared in the convention over whether the state ought to invest in or lend its credit to private business ventures. The Republican party tended to support such investments and the Democrats opposed them.17

In this connection, it is important to understand the change that has taken place in American politics since the nineteenth century Then the Democratic party tended to champion states' rights and limited government. The Republicans, on the other hand, favored national supremacy and activist government as long as it benefited the business community.

Throughout the nineteenth century, also, differences of opinion appeared particularly between the more conservative and localist Jeffersonians and Democrats and the more nationalistic Federalists, Whigs, and Republicans on the role of the federal government in administering the territories.18 To most of us today it seems quite evident that the creation and administration of territories derived from the powers granted Congress in Article 4 Section 3 of the U.S Constitution—the Property Clause. In its wording the Property Clause granted Congress the power to make "all needful rules and regulations respecting the territory and other property belonging to the United States." By contrast, during the nineteenth century Americans proposed at least three theories to interpret that clause, two of which—had they prevailed—would have tied the hands of the federal government quite tightly The earliest theory, the theory of national supremacy, proposed an expansive and nearly unlimited administrative role for the federal government in the territories In 1828 the U.S Supreme Court, speaking through Federalist and Chief Justice John Marshall in TheAmerican Insurance Company v. Canter (1828), said that Congress governed the territories by virtue of the Property Clause. Marshall said further that the citizens of the territories enjoyed "the privileges, rights, and immunities, of the citizens of the United States . . . They do not, however, participate in political power."19 Marshall's ruling meant that territorial residents had all the rights of American citizens except self rule. In Marshall's view they had no right to govern themselves.

Marshall's nationalist theory remained in vogue only for about twenty years. During the 1840s and 1850s, as the controversy over the expansion of slavery into the western territories began to rip at the fabric of the nation, certain politicians proposed a territorial theory competing with the nationalist theory that historians have called territorial sovereignty, popular sovereignty, or—sometimes in derision— squatter sovereignty The theory of popular sovereignty found its major supporters among northern Democrats who understood that the slavery question could easily tear the nation apart. In late 1847 Congress began to consider the organization of the territory the United States had captured from Mexico in the Mexican War and to which the nation would subsequently gain title in the Treaty of Guadalupe Hidalgo (1848). As the debate progressed in December 1847 Michigan Senator Lewis Cass, who became the Democratic candidate for president in 1848, spelled out the theory of popular sovereignty in a letter to the Niles National Register, a national political newspaper. He proposed a limited reading of the Property Clause and a natural rights view of sovereignty. He said that the Property Clause granted Congress the right "to manage, preserve & disposeof such property as it might possess. . . . But the lives and persons of our citizens [living in the territories], with the vast variety of objects connected with them, cannot be controlled by an authority which is merely called into existence for the purpose of making rulesandregulationsfor thedispositionand managementofproperty." In his view the U.S. Constitution limited the power of Congress "to the creation of proper governments for new countries, acquired or settled, and to the necessary provision for their eventual admission into the union, leaving in the meantime, to the people inhabiting them, to regulate their internal concerns in their own way."20

Implicit in Cass's argument lay the proposition that sovereignty did not derive from the rights of citizens of states, as Marshall had argued, but from natural rights consistent with human intelligence and liberty. Under those conditions territorial citizens had the right to make decisions for their own local concerns Cass said that he found it "inexpedient" for Congress to exercise any authority "which questions the intelligence of a respectable portion of our citizens."

Any congressional regulation of local matters, he thought, smacked of despotic power over sections of the nation's common territory.

Significantly, Cass's theory of popular sovereignty served as the view of most Mormons in Utah during most of the territorial period Over and over again they argued for the right of local home rule and popular sovereignty.21 For instance, the entirely Mormon 1862 constitutional convention grounded its argument for admission to the Union on the theory of popular sovereignty. In the memorial, the delegates said that statehood was "their unquestioned right." They argued further that Congress's only functions in admitting states were to determine whether a state had a republican form of government, whether the population warranted statehood, and whether the people of the territory approved admission.22

Both the nationalist and the popular sovereignty theories of territorial administration faced a challenge from another theory proposed to protect slavery—the states' rights theory. This theory reached its greatest strength immediately prior to the Civil War as aggressive southerners and their northern supporters fought a rear-guard action to protect slavery. In his 1857 decision in Dred Scottv. Sandford Chief Justice Roger Taney, while professing agreement with Marshall's opinion in the Canter case, implicitly rejected it with his left hand while with his right hand he wrote the states' rights theory into constitutional law

Like proponents of the theory of popular sovereignty, Taney based the states' rights theory on a narrow interpretation of the Property Clause. Arguing that the clause applied only to territory acquired under the Articles of Confederation and owned by the United States at the time of adoption of the constitution, he ruled that the Property Clause did not apply to regions acquired since 1789

Following this view with a strict interpretation of the constitution, Taney said that since nothing in the Property Clause specifically said that it applied to new acquisitions, the provision prohibited Congress from applying certain restrictions to new territories.23

After casting out the Property Clause and imposing a strict construction on the constitution, Taney had to find a different theory to allow the federal government to acquire and govern the territories. He found such permission in what • ^ he saw as the general prerogative of any sovereign to acquire new territory and the right specifically delegated to Congress by the constitution to create new states.24

For Taney the trail fashioned with this argument led to the proposition that since the constitution did not enumerate any specific authority for Congress to govern territories except those acquired before 1789, newly acquired territories were the common property of all the states and not the property of the United States. Under those circumstances, Taney said, Congress could pass no law depriving citizens of any state of rights they might enjoy either in their own states or as citizens of the United States.25 In effect, Taney's decision repealed previous congressional attempts to regulate slavery such as the Missouri Compromise (1820) and the Kansas-Nebraska Act (1854). It also implicitly invalidated the provision of the Utah and New Mexico territorial organic acts that allowed the territories to regulate or prohibit slavery. Thus, just as it repudiated Marshall's theory of national sovereignty it also repudiated Cass's theory of popular sovereignty.

In the charged atmosphere of the abolitionist movement and intense antislavery sentiment, Taney's states' rights theory did not remain unchallenged for long. Opposed to the expansion of slavery into the territories, Abraham Lincoln and members of the recently organized Republican party could stomach nothing that protected such an abominable practice. In his first inaugural address Lincoln explicitly rejected Taney's view of the Property Clause; and Republicans in Congress, with the president's approval, rejected Cass's popular sovereignty doctrine as well.

Grounding his revived theory of national sovereignty on majority rule and on an expansive interpretation of the constitution, Lincoln said that it neither granted nor withheld any specific power of the federal government over territory belonging to the United States. Rather, such power rested with the people, who could exercise it through their representatives. A popular majority is, he said, "the only true sovereign of a free people."26 Implicitly rejecting the role of the Supreme Court as general interpreter of the constitution, Lincoln held that Taney's decision created no general precedent but applied only to the Dred Scott case itself. For a binding constitutional precedent, he said Americans must look to the wisdom of the majority of the people. Continuing, in what may have been a reference to Madison's argument in the Tenth Federalist Paper, Lincoln argued that in the absence of specific constitutional limitations the majority ruled, since it was still "held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments."

The alternative to majority rule—and by this he meant the majority of American citizens not the majority in a territory—was either anarchy or despotism. Anarchy—since a minority that refused to accept majority rule could create chaos for the nation. Despotism— since without majority rule "people will have ceased to be their own rulers . . . [particularly if they resign] their Government into the hands of [the Supreme Court.]"

Congress moved rapidly to enact laws consistent with Lincoln's resurrection of John Marshall's nationalist theory of the Property Clause In June 1862 in the first piece of territorial legislation passed after Lincoln's election, Congress prohibited slavery in the territories.27 In doing so, the Republican majority swept away arguments by Representative Charles A. Wickliffe of Kentucky and Senator John S. Carlile of Virginia objecting to the abrogation of provisions of North Carolina's cession to the United States of lands in Mississippi and Alabama and the infringement upon treaty rights of Indians who held slaves.28 In a similar nationalist mood, the same Congress passed the Morrill Antibigamy Act, which prohibited the practice of polygamy in the territories and invalidated a Utah law incorporating the Church of Jesus Christ of Latter-day Saints.

Moreover, just as Chief Justice Taney did not specifically overrule Marshall's decision in the Canter case, the Republican-controlled Supreme Court wrote the nationalist theory of territorial administration into law without specifically overruling Dred Scott v. Sandford. In the 1872 case of Clinton v. Englebrecht Chief Justice Salmon P. Chase wrote a decision that cut two ways. Chase overruled the high-handed efforts of Utah Chief Justice James B. McKean to ignore Utah law by having the U.S. marshal recruit people from the streets to serve on juries. At the same time, Chase said that although the people of the territories ought to be left with the widest possible latitude, "consistent with the supremacy and supervision of National authority," their authority derived from "certain fundamental principles established by Congress," specifically spelled out in the territorial organic acts and from the authority of Congress granted in the Constitution's Property Clause.29

Moreover, the passage of the Poland Act in 1874, which restructured the administration ofjustice in Utah, and decisions in the 1880s by Chief Justice Morrison R. Waite reaffirmed the nationalist theory of territorial administration Two of Waite's decisions—one of which came from Utah—seem particularly important. In Reynolds v. United States, Waite said that a statute prohibiting polygamy in the territories lay "within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control."30 In National Bank v. County of Yankton (1879), upholding the validity of railroad bonds issued by Dakota Territory, Waite ruled that "It is certainly now too late to doubt the power of Congress to govern the Territories." Furthermore, implicitly denying any vestiges of state or popular sovereignty in the territories, he said that the territories bear the same relation to the federal government as the counties do to states.31

Agreeing with this nationalistic theory of territorial administration, the Republican majority in Congress danced on the graves of the dead popular sovereignty and states' rights theories by enthroning a theory of territorial administration called the pupilage theory. Under this theory, the people of the territories stood in relationship to the people of the United States as school children learning to govern themselves in preparation for statehood.

Exercising plenary power under the nationalist and pupilage theories, Congress controlled virtually all aspects of territorial administration. Under the territorial system, the federal government set the lengths of sessions of territorial legislatures, determined the size of the legislatures, paid the salaries of federally appointed executive and judicial officers, and paid the salaries and expenses of members of territorial legislatures Moreover, Congress prohibited the territorial legislatures from supplementing these salaries through additional appropriations, gave the governor an absolute veto over acts of the territorial legislature, and prohibited special legislative sessions without congressional approval.

These theories conflicted with the views of most territorial citizens who favored popular sovereignty. Nevertheless, Congress asserted its authority. In 1878 in an economy move, House Appropriations Committee Chairman John D. C. Atkins of Tennessee proposed to reduce the size of both houses of the territorial legislatures, to decrease the length of legislative sessions from sixty to forty days, and to diminish legislative salaries. In justifying the proposal, Atkins said that Congress has "supreme control over the Territories."32

The territorial delegates rose immediately to protest. Delegate Orange Jacobs of Washington Territory pointed out that the territorial organic acts had spelled out the size of the legislatures, and he complained that the appropriations committee had proposed these changes in defiance of the provisions of the organic acts and without consulting the delegates or the members of the House Territorial Committee. Other delegates such as William W. Corlett of Wyoming and Stephen S. Fenn of Idaho argued that Congress showed no real concern for territorial problems, particularly for the difficulty of securing an adequate sampling of opinion with small legislatures or in the short sessions allowed under the bill.33

Waxing eloquent in opposition to the move, Fenn leveled a blast of hyperbole at Atkins and his committee. "The Committee on Appropriations," he said, "look upon the Territories as their servants, or very much as a guardian would who had been appointed such over some half dozen female infants, and when they had labored for his interests until they had reached the age of fifteen years he drives them out into the streets and makes them submit themselves to prostitution to gratify his greed."34

In response to such impudence, Congressman Milton J. Durham of Kentucky rose to administer the territories what he called "a little spanking." He pointed out that the federal government paid the salaries of territorial officials; it did not do so for the states. The government appointed the executive and judicial officers and paid the salaries, he said, because territorial citizens were "children, incompetent to take care of yourselves." The territories, he said were "passing through the pupilage that every Territory ought to go through."

Responding to Durham, Delegate George Q. Cannon of Utah rose to denounce the pupilage theory and to propose a compromise. First, he said that if economy were the real intent of Congress, the territories would much prefer to lower the salaries of legislators so they could retain the same number of members and hold the longer sessions. He argued, as the other delegates had, that the proposed reduction in the length of sessions and number of members would make conducting their business effectively very difficult for the legislators.

At the same time, he tried without success to reintroduce the theory of popular sovereignty. His constituents would gladly pay "all our legislative expenses and pay the salaries of our governor andjudges if we had the privilege of electing them. But so long as they are selected for us, and our legislation is supervised, and no bill can become law, however unanimously passed, without the sanction of the governor, then I think that the Government which appoints the men should pay them."35

Congress allowed the territorial delegates to express their opinions, but delegates could only lobby; they could not vote. When the votes were counted Congress had not swerved from its resolve to exercise its sovereign right to treat territorial citizens as children On the basis of the nationalist and pupilage theories Congress reduced the salaries, the size of the legislatures, and length of the sessions.36

Moreover, during the 1880s Congress, with the support of the American people, used a well-cured hickory stick to teach the tune of nationalism and pupilage to Utahns.37 In 1882 it passed the Edmunds Act which opened a second classroom in the series of lessons designed to teach the Mormons not to practice polygamy or theocracy. The law made a misdemeanor of cohabiting with more than one woman. The act also disfranchised men and women who practiced polygamy and turned the territory's election apparatus over to five federal appointees. The Edmunds-Tucker Act passed in 1887 escheated—we might call it confiscated—the LDS church's property for the benefit of the territorial schools, disfranchised all Utah women, turned the administration of public schools over to a federal appointee, abolished the territorial militia, and asserted federal authority in various other ways.

The courts upheld the various provisions of the Edmunds Act, and in 1890 Justice Joseph Bradley waxed even more expansively in upholding the Edmunds-Tucker Act. He said that "The power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the Territory itself, and from the power given by the Constitution [quoting from the Property Clause] to make all needful rules and regulations respecting the Territory or other property belonging to the United States."38 Nor did Congress hesitate to continue to exercise its authority as a schoolmaster over territories in general as well as over Utah Territory in particular. In 1886 Congress passed the Springer-Harrison Act, sponsored by Representative William M. Springer of Illinois and Senator (later President) Benjamin Harrison of Indiana. Springer's original bill, essentially noncontroversial, was part of a general movement during the nineteenth century to eliminate legislative grants of special privilege. It required territories to pass general acts on such matters as incorporation and divorce.39

Harrison had introduced a bill to control territorial indebtedness, but after Springer's bill passed the House, the Senate added the provisions as amendments to the Springer bill. Springer's original bill had little impact on most territories, since most had already passed laws prohibiting such special acts, but Harrison's amendments reinforced the nationalist and pupilage theories by severely limiting any local discretion in incurring debts. Under the Harrison Act, no territory could incur a debt in excess of 1 percent of its assessed property valuation, and subordinate units such as cities and counties had a debt limit of up to 4 percent of assessed valuation. In addition, the act prohibited any territory from subscribing to stock in corporations or lending territorial credit in support of any such enterprise. Finally, the act reaffirmed the already existing right of Congress to annul any territorial law.40

In line with the Progressive sentiment of the age, Congress also introduced into the territories measures for public health and safety In 1891 Congress set up the offices of coal mine inspector for the territories of Utah, New Mexico, and Oklahoma.41

In considering the impact of territorial administration on Utah, historians have assumed that Utah's conflicts with the federal government were unique and have done so by neglecting to place Utah's experience in the general context of nineteenth-century territorial administration. Surveying the other western territories we find conflicts between federal appointees and local people in other places as well. In other territories the conflicts resulted from differences over politics, economics, and Native American policy and religion. In each case, however,just as in Utah the principal issues were the same—local vs national authority and popular vs national sovereignty

In other territories powerful local groups challenged the authority of the federal government and its appointees. In most cases they campaigned for popular sovereignty but ran head on into the roadblock of the nationalist and pupilage theories instead. In Montana, for instance, the conflict between territorial governor Benjamin F. Potts on the one hand and the coalition of Wilbur F. Sanders and the Fisk brothers on the other was in part at least a dispute within the Republican party over patronage and control. Many Montana citizens also sympathized with the Confederacy rather than the Union, a view that generated conflicts during the Civil War and Reconstruction.42 In Idaho a controversy erupted between nationalist governor Mason Brayman and members of the local "Boise Ring" that included territorial secretary Edward J. Curtis, surveyor general Lafayette Cartee, U.S. attorney Joseph W. Huston, and Idaho Statesman editor Milton Kelly.43 In Arizona and New Mexico conflicts between local and national interests resulted from such issues as Hispanic culture, Catholicism, conservation of natural resources, Indian policy, and Progressivism.44 In Washington Territory conflicts flared between local antimonopolists and lumber companies on the one hand and the Northern Pacific Railroad on the other. Nationalistic territorial governors Elisha P Ferry and Watson C Squire generally supported the railroad.45

In each case such conflicts retarded admission of the territories as states In practice, Congress would not admit any territory into the Union until its residents had learned through training in nationalism to fit comfortably within the limits of acceptable behavior as citizens of the United States. Initially, both New Mexico and Utah rejected English common law because of existing Mexican civil law and Mormon customary law. In both territories pressure from national interests, especially from federal judges, forced the adoption of the national system of English common law which both territories incorporated into their state constitutions.46

The efforts to integrate the people of the territories into the American nation was not simply an exercise in western bashing by easterners and midwesterners. As Lincoln recognized in his first inaugural address, every nation, even a pluralistic federal republic like the United States, has certain limits of acceptable behavior that are generally established by the consensus of the people The need for such consensus became increasingly critical in the late nineteenth century After all, Americans had learned in the blooddrenched battlefields of Gettysburg, Antietam, Vicksburg, and Shiloh that an excessive insistence on local rights could destroy the Union even more easily than excessive nationalism could destroy individual liberty. Operating under the nationalistic and pupilage theories the federal government taught citizens in the territories to learn to live within the Union as well as to live in their local communities.

In Utah, Mormons, Catholics, Protestants, Jews, and others had to learn to live together. In the 1850s and early 1860s that proved extremely difficult, as the cases of run-away officials like Perry Brocchus, Henry Day, Lemuel Brandebury, Willis Drummond, and John Dawson demonstrated.

The 1880s and early 1890s became a crucible in which the fires of nationalism and pupilage smelted Mormons, Protestants, Catholics,Jews, and others into Utahns and Americans. Mormons in Utah had to learn that the American nation would never allow a polygamic theocracy into the Union. At the same time, Utahns of other faiths also had lessons to learn. Both Mormons and those of other faiths had to learn to cooperate in politics, business, and society.

Fortunately, Utahns were blessed during the 1880s with some honest and judicious officials who served as teachers. Although Utah Chief Justice Charles S. Zane probably wreaked more havoc on the Mormon community than any other federal official by imprisoning men who practiced polygamy, the Mormons admired him for defending their cities and towns and by acting fairly in disputes with the Utah Commission. In the election that inaugurated statehood, Utahns rewarded Zane by electing him the first chief justice of the Utah State Supreme Court.47 Territorial governor Caleb W. West led in the initiative to bring Mormons, Catholics, Protestants, and Jews together to organize the Chamber of Commerce in Salt Lake City, and local people and women's groups built bridges to one another as they all strove for statehood.48 In the early 1890s people of all faiths worked together to organize national political parties, and LDS church leaders sought non-Mormon capital for investment in a wide range of business enterprises.49

In some cases Utahns learned lessons from other states and territories that probably ought to have remained unlearned, since graft crept into Utah as into other territories and states Most territorial legislators recognized that the federal government did not pay high enough salaries to retain excellent people as territorial governors. As a result the lawmakers worked out various creative ways of providing additional money. In Arizona, for instance, the legislature designated the governor as ex-officio superintendent of public instruction and provided an additional salary of $1,000 for that office. The Utah legislature paid governor Eli H Murray $2,000 for a "mythical messenger," which he apparently used, with legislative approval, for himself.50

Earlier administrations apparently winked at such activities, but the Cleveland administration launched a campaign against corruption. In 1886 Secretary of the Interior L. Q. C. Lamar ordered the territorial governors to veto any acts that appropriated such additional compensation. Under such directions Governor Murray vetoed a general appropriation act that included the messenger's salary even though he would have benefited and even though the veto created a financial crisis in the territory both for himself and for his successor, Caleb West.51

In summary, the late nineteenth-century American territories— including Utah—functioned within a historical condition of nationalism and pupilage that prepared citizens for statehood Like good children in school, Mormons in Utah learned through their territorial experience to curb such eccentricities as polygamy and excessive religious involvement in politics and economic development

Concurrently, as part of the same historical condition, Utah's Catholics, Protestants,Jews, and others learned from the same schoolmaster to cooperate with Mormons in political parties, in business enterprises, in labor unions, in women's clubs, and in hundreds of other ways.

Thus, that Utah's constitution contained so many provisions resembling those of other states resulted from a maturation that took place in the context of the territory's political, social, and economic history. The delegates included the various provision, in the constitution willingly; they did not draft the document under duress. Utah incorporated, for instance, provisions limiting the public debt similar to those in the Springer-Harrison Act and coal mine inspection like the federal law, because they had come to see the value of such measures

At the same time, within a general framework that they had learned to accept as part of their heritage, Utah's delegates debated certain provisions such as woman suffrage, water appropriation, regulation of corporations, and protection of labor In sum, Utah's 1895 constitution with its separation of powers, checks and balances, auxiliary precautions, progressive legislation, limitations on the governor and the legislature, numerous clauses of general legislation, and other features resulted from the historical experience of Utahns as they learned to become American citizens.


Dr Alexander is Lemuel Hardison Redd, Jr., Professor of Western American History at Brigham Young University, Provo

1 On the drafting of the various constitutions see: Jerome Bernstein, "A History of the Constitutional Conventions of the Territory of Utah from 1849 to 1895," (M.S. thesis, Utah State University, 1961) For the proceedings of the convention of 1895 see: State of Utah, Official Report of the Proceedings and Debates of the Convention Assembled at Salt Lake City on the Fourth Day of March, 1895, to Adopt a Constitution for the State of Utah, 2 vols (Salt Lake City, 1§98).

2 Peter Crawley, The Constitution of the State ofDeseret (Provo: Friends of the BYU Library, 1982), p 12 Until Crawley's work, most authorities had believed that the constitution of 1849 was modeled on the 1818 Illinois Constitution. See: Martin B. Hickman, "Utah Constitutional Law," (Ph.D. diss., University of Utah, 1954), pp 42-44.

3 On the models for the constitutions see Bernstein, ""A History of the Constitutional Conventions," pp 41-42, 57, 67; Gordon Morris Bakken, Rocky Mountain Constitution Making, 1850-1912 (Westport, Conn.: Greenwood Press, 1987), pp 6-7; Joh n J Flynn, "Federalism and Viable State Government—The History of Utah's Constitution," Utah Law Review (September 1966): 311-25; Martin Berkeley Hickman, "Utah Constitutional Law," (Ph D diss., University of Utah, 1954), 42-77; and Hickman, "The Utah Constitution: Retrospect and Prospect," in Neal A. Maxwell and Edward W. Clyde, Interim Report of the Constitutional Revision Commission Submitted to the Governor and the Legislature of the State of Utah (Salt Lake City: Constitutional Revision Commission, 1971), pp 27-29 Hickman cites also a constitution of 1867 in one work and of 1869 in another Actually, in January 1867 the territorial legislature petitioned for admission, and on October 7, 1869, the people held a mass meeting to petition for statehood In neither case did they actually hold an additional constitutional convention See Andrew Jenson, ed., Church Chronology: A Record of Important Events Pertaining to the History of the Church ofJesus Christ of Latter-day Saints, 2d ed. rev. (Salt Lake City: Deseret News, 1914), pp. 76, 81.

4 For the sources of the various provisions see the memorials and committee reports filed with records of the Utah State Constitution in the Utah State Archives In general, the endorsement pages of the memorials and committee reports cite the sources of the various provisions See especially the memorials filed in box 2, Statehood Constitutional Convention, 1895, Convention Records, Utah State Archives, Salt Lake City (hereinafter cited SCC 1895.)

5 Bernstein, "A History of the Constitutional Conventions," pp 46-50.

6 Ibid., pp 58-59.

7 Ibid., pp. 68-69.

8 Stanley S Ivins, "A Constitution for Utah," Utah Historical Quarterly 25 (1957): 102-5; See also Bakken, Rocky Mountain Constitution Making, pp 93-98.

9 J R Murdock, chair of committee on irrigation and agriculture, n.d., box 2, folder 37, committee report 16, citing the numerous petitions and proposed draft provisions submitted to the convention for the irrigation article, SCC 1895.

10 See the discussions in Flynn, "Federalism and Viable State Government," pp 312-22; and Hickman, "The Utah Constitution," pp 18-27.

11 Hickman, "The Utah Constitution," p 18 For Hickman's contribution to Utah constitutional law see: Hickman, "Utah Constitutional Law," esp. pp. 19-36, for a discussion of constitutional change leading to Utah's constitution and pp 74-75 for the argument against the history of the relations with the territorial government as the basis for the 1895 constitution.

12 Hickman, "The Utah Constitution," pp 18-21 and 26-27.

13 Ibid., pp 21-26; Flynn, "Federalism and Viable State Government," 312-14.

14 Richard D Poll, et at, eds., Utah's History (Provo: Brigham Young University Press, 1978), pp 692-93.

15 On the situation in the cities see Thomas G Alexander and James B Allen, Mormons and Gentiles: A History of Salt Lake City (Boulder, Colo.: Pruett, 1984), pp 99-100; Richard C Roberts and Richard W Sadler, Ogden:Junction City (Northridge, Calif: Windsor, 1985), pp. 52, 56.

16 On this matter see Thomas G Alexander, Things in Heaven and Earth: The Life and Times ofWilford Woodruff, a Mormon Prophet (Salt Lake City: Signature Books, 1991), pp. 262-63, 274-77, 281-82.'

17 Ivins, "A Constitution," pp 106-7.

18 For general discussions of the American territorial system and its application in the Mountain West see Earl S Pomeroy, The Territories and the United States, 1861-1890: Studies in Colonial Administration, 2d ed (Seattle: University of Washington Press, 1969); Jack Ericson Eblen, The First and Second United States Empires (Pittsburgh: University of Pittsburgh Press, 1968); John Porter Bloom, ed., The American Territorial System (Athens: Ohio University Press, 1973); Howard R Lamar, The Far Southwest, 1846-1912: A Territorial History (New Haven: Yale University Press, 1966); and Thomas G Alexander, A Clash of Interests: Interior Department and Mountain West, 1863-1896 (Provo: Brigham Young University Press, 1977).

19 The American Insurance Company^. Canter, 26 U S 514 (1828) at 542.

20 Lewis Cass to A O P Nicholson, December 23, 1847, Niles National Register, January 8, 1848, pp 293-94. For discussions of territorial expansion and the various constitutional theories see Eugene H. Berwanger, The Frontier Against Slavery: Western Anti-Negro Prejudice and the Slavery Extension Controversy (Urbana: University of Illinois Press, 1967), and Robert W Johannesen, Frontier Politics on the Eve of the Civil War (Seattle: University of Washington Press, 1955) For a general discussion of constitutional development during the period see Harold M Hyman and William M Wieck, Equal Justice under Law: Constitutional Development, 1835-1875 (New York: Harper and Row, 1982).

21 See, for instance, B. H. Roberts, A Comprehensive History of the Church ofJesus Christ of Latter-day Saints: Century One (Salt Lake City: Deseret News, 1930), 5: 20-23, 391-98.

22 Hickman, "Utah Constitutional Law," pp 46-47.

23 Dred Scottv. Sandford, 60 U.S., 393 (1857) at 432 For a general discussion of the Dred Scott decision see Don E Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), pp 372—73 Fehrenbacher argues, rightly I believe, that Taney's interpretation of Marshall's decision was "untenable."

24 Dred Scottv. Sandford at 443, 447-48.

25 Ibid, at 449-50.

26 Abraham Lincoln, "First Inaugural Address," in James D Richardson, ed., A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, 1897), 7: 3210-11.

27 12 U.S Statutes alLarge432 (June 19, 1862).

28 Congressional Globe, 37th Cong., 2d sess. (1862), pp. 2030, 2066-68, 2618.

29 Clintonv. Englebrecht 80 U.S. (13 Wallace), 434 (1872) at 441, 444, 446, and 447. On the career of Judge McKean see Thomas G. Alexander, "Federal Authority Versus Polygamic Theocracy: James B. McKean and the Mormons," Dialogue: A Journal of Mormon Thought 1 (1966): 84-100.

30 Reynolds v. United States, 98 U.S. 145 (1879) at 166.

31 National Bank v. County of Yankton 101 U.S. 129 (1879) at 132-33.

32 Congressional Record, 45th Cong., 2d sess. (April 30, 1878), pp. 275-76.

33 Ibid., p. 2977.

34 Ibid., pp. 2979-80.

35 Ibid., p. 2981.

36 Ibid., pp 2982, 2988, 2998, 5502-03.

37 For more detail on the actions of Congress, local administrators, and judges and the changing attitudes of Utah citizens see Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church ofJesus Christ of Latter-day Saints, 1830-1900 (Urbana: University of Illinois Press, 1988), pp 129-60; Martha Sonntag Bradley, " Hide and Seek': Children on the Underground," Utah Historical Quarterly 51 (1983): 133-53; Edward Leo Lyman, Political Deliverance: The Mormon Questfor Utah Statehood (Urbana: University of Illinois Press, 1986); and Alexander, Things in Heaven and Earth, pp 191-287.

38 The Late Corporation of the Church ofJesus Christ of Latter—day Saints v United States 136 U.S 1 (1890) at 42 See also Murphy v. Ramsey, 114 U.S 15 (1885) at 44, where the court upheld the right of Congress to vacate Utah's registration offices and appoint the Utah Commission to control local elections.

39 See the legislative history of HR5179 and S2626, 49th Cong., 1st sess (1886) In some ways the Springer bill was redundant since Congress had already prohibited special charters in 1867; see Gordon M Bakken, The Development of Law on the Rocky Mountain Frontier: Civil Law and Society, 1850—1912 (Westport, Conn.: Greenwood, 1983), p 118.

40 24 U.S Statutes at Large, 170 (1886).

41 Alexander, Clash of Interests, p. 175.

42 Clark C Spence, Montana: A Bicentennial History (New York: Norton, 1978), pp 80-81.

43 Thomas G. Alexander, "Mason Brayman and the Boise Ring," Idaho Yesterdays 14 (1970): 21-27. See also Ronald H Limbaugh, Rocky Mountain Carpetbaggers: Idaho's Territorial Governors, 1863-1890 (Moscow: University of Idaho Press, 1982).

44 Lamar, The Far Southwest, pp 444-47, 486-99.

45 Robert E. Ficken, The Forested Land: A History of Lumbering in Western Washington (Seattle: University of Washington Press, 1987), pp 40-47; and Kenneth N Owens, "Pattern and Structure in Western Territorial Politics," in Bloom, ed., The American Territorial System, p 167.

46 Bakken, The Development ofLaw, pp. 22-24. Only Louisiana, of all the states, has retained civil law. Significantly, Louisiana became a state in 1812, prior to Marshall's decision in Canter and during the period before the national or pupilage theories had been elaborated.

47 On the career of Judge Zane see Thomas G Alexander, "Charles S Zane, Apostle of the New Era," Utah Historical Quarterly 34 (1966): 290-314.

48 On the development of women's groups see Carol Cornwall Madsen, "Schism in the Sisterhood: Mormon Women and Partisan Politics, 1890-1900," in Davis Bitton and Maureen Ursenbach Beecher, eds., New Views of Mormon History: Essays in Honor of Leonard J. Arlington (Salt Lake City: University of Utah Press, 1987).

49 On developments during this period see Lyman, Political Deliverance.

50 Alexander, Clash of Interests, p 69; specifically on the Utah situation see Salt Lake Herald, January 30, 1886, cited in Journal History of the Church of Jesus Christ of Latter-day Saints, LDS Church Archives, Salt Lake City.

51 Ibid.; Deseret Evening Neivs, May 13, 1886; and Journal History, April 20, 1886 For a discussion of this episode see Thomas G Alexander, "The Federal Frontier: Interior Department Financial Policy in Idaho, Utah, and Arizona, 1863-1896," (Ph.D diss., University of California, Berkeley, 1965), p 162.