THE LEGAL HISTORY OF UTAH
Arrested striking coal miners under guard, 1904
Legal history describes the procedures and sanctions of an orderly society.
Utah's legal history includes the laws, customs, ideas, institutions, and
practices which have governed its settlers and citizens. Its legal history
also includes economic, political, religious, and social developments.
The Native American inhabitants of Utah governed by custom and oral arrangement;
their arrangements had slight influence on incoming white settlers and their
institutions. Mormon pioneers settling in Salt Lake valley did so for the
most part without offending Indian tribal rights since they settled in an
intertribal no-man's-land. Likewise, Spanish civil law had little impact
on white settlers in Mexican territory. Such a contract was short-lived
anyway, since the Mexican War ended Mexican claims to Utah Territory shortly
after Mormons settled Salt Lake Valley.
Early Utah law was introduced by Mormons into their communities, and consisted
of a mix of divine law, natural law, state and federal laws, and Mormon
practices. In time, an unwritten western common law would also emerge. Persons
with legal skills were uncommon and not especially sought out until after
the Civil War. However, early acknowledgment that government has a responsibility
to supervise social and economic life resulted in the creation of a territorial
legislature and the provisional State of Deseret in 1850.
For many years, Utahns relied on Mormon Church institutions for civil government.
After the arrival of the Mormons in the Salt Lake Valley in 1847, an ecclesiastical
council and a marshal directed municipal affairs. In December 1847 a General
Council took over the affairs of civil government. Bishop's courts for local
wards provided a judicial process, with ecclesiastical high councils serving
as appellate courts. Bishops, stake high councils, and the LDS First Presidency
officiated as courts. Police power was placed in the Nauvoo Legion, and
law enforcement officers were appointed. Church tithes and offerings served
as community revenues.
Extralegal violence was rare compared to that found in other frontier communities.
Litigation was discouraged and people were urged to settle their grievances
in a system of arbitration before Bishop's courts where Mormon and non-Mormons
generally received satisfactory justice. These ecclesiastical courts distinguished
Utah from other frontier communities where vigilante committees periodically
arose to help maintain law and order. Punishments also were lenient by comparison.
When necessary, whipping of offenders was administered, since jails were
unavailable. Prisoners were often housed with the sheriff, and posses frequently
formed upon conclusion of church services.
Mormon practice of central direction, cooperation, and consensus formed
a framework for government. Leading men would agree and others were expected
to concur. Problems and concerns were openly discussed and basic decisions
governing the community were made in religious services. Non-Mormons soon
came to resent their lack of involvement in this process.
An attitude of stewardship framed the regulation of land, water use, and
timber rights. Equal shares were given in return for labor. This reflected
the reality of scarce supply as well as the religious idea of collective
Territorial life meant that while citizens could send a delegate to Congress
he could not vote. Also, citizens were unable to elect their own governor
and judges. Thus, the General Council in December 1848 formed itself into
a convention and pushed for an election. On 12 March 1848 they elected Brigham
Young as provisional governor, and also chose a secretary of state, a chief
justice, and a legislative assembly. Although the convention proposed the
offices of lieutenant governor and auditor, the General Council instead
added an attorney general, an assessor/collector, a marshal, and a supervisor
of roads. The existing ecclesiastical courts became civil courts and several
bishops were elected as magistrates.
In July 1849 the first legislative assembly met and petitioned Congress
for recognition as a provisional state. The territorial petition was withheld,
however, since their territorial status had some ambiguity. Frustration
mounted, since the Northwest Ordinance of 1787, which was the basic pattern
for all U.S. territories on the continent, guaranteed civil rights to citizens
in the territories and also provided that they could become states as conditions
warranted. The provisional state of Deseret failed statehood in 1850 as
well as numerous times until 1896 since its fortunes became mired in the
debate over the expansion of free and slave states as well as the problem
of polygamy. Brigham Young was officially appointed governor of Utah Territory,
however; in addition, Indian agents, justices, and a secretary were also
appointed. A census led to the election of a territorial assembly. The bill
creating the territory was signed by President Millard Fillmore on 9 September
1850. He appointed ten territorial officials including Brigham Young--five
Mormons and five non-Mormons.
Local governments gradually emerged with county governments being administered
by a probate judge and three selectmen. In 1850 the territorial legislature
created six counties whose names and boundaries changed nearly one hundred
times before 1917, at which time the last county, Daggett, was created.
These county selectmen appointed water masters and hired ground overseers
and supervisors over roads and canyons. Selectmen became both the legislative
and executive arms of county government. A probate judge dealt with estates,
guardianship, and other civil affairs. Criminal jurisdiction was added but
in time conflicted with the federal district courts, which were distrusted
and avoided. Church courts continued as courts of arbitration.
Increasing settlement brought the formation of municipalities to provide
specialized services such as animal control and regulation of commerce.
In 1851 Salt Lake City was the first city to be chartered by the territorial
legislature. It followed the American pattern of a mayor/council form of
government. The council developed ordinances and policies which the mayor
was charged to enforce. For example, scarcity of timber gave rise to a prohibition
against harvesting green timber.
Territorial Utah, while imitating other states and communities, originated
some of its own legal customs. Newly settled areas continued to place civil
power in the hands of an ecclesiastical stake presidency and high council.
This ecclesiastical municipal council provided instant order for a community
as well as an orderly transition to civil government. In early Salt Lake
City the city council was composed of members of the twelve apostles of
the Mormon Church.
Land ownership and occupation were not governed by speculation and squatter's
rights as was the case elsewhere in the United States. Speculation was prohibited
and much land was reserved for later settlers. One could not hold more land
than he could harvest in a single day. Common grazing fields were maintained
until population density brought the apportionment of fields. An attitude
of stewardship over the land was fostered. It was felt that the earth belonged
to God and man's duty was to replenish it. Collectivism instead of capitalism
prevailed until 1869 when Congress passed a law that land could be privately
Riparian water rights which applied in most states did not apply in semi-arid
Utah where water was critical to life and production. Water was developed
cooperatively and public ownership of it prevailed.
Mining law was not legislated, but instead developed by custom as in other
mining communities. These customs lasted as long as consensus permitted,
and in time became legal codes which governed ownership and development
of the rich silver, copper, and other metals of Utah.
Timber and grazing monopolies and charters were often granted to local leaders,
although this practice angered non-Mormons.
Early territorial law provided against the abuse and neglect of women and
children. It was a misdemeanor not to provide food, clothing, and shelter
for one's family.
Female suffrage was passed by the territorial legislature in 1870, and it
tended to give Mormons a distinct advantage at the polls. Speaking against
female suffrage in 1896, Brigham H. Roberts felt that women would be at
the mercy of their husbands, who would in effect have two votes, and he
also felt placing women in politics would lessen their presence in strengthening
the home. Despite his arguments, female suffrage was approved with statehood
Both American and Utah legal history indicates a widespread distrust for
judges, juries, and the law. Strict rulings on permissible evidence, selection
of juries, and the election of judges were part of the effort to narrow
their influence. Utah's experience with territorial judges contributed to
this heightened distrust of the law, yet as a new territory it also adopted
a legacy of law from other states and communities and did not exist in a
Both the crusade against slavery with its post-Civil War congressional radicalism
and the crafting of a state constitution reveal outside forces and ideas
influencing Utah legal institutions for generations.
Territorial Utah demonstrated loyalty to the Union during the Civil War
when many states were questioning it; Mormons generally were too strongly
attached to America. Thus, Utah's struggle for home rule did not include
separation from the United States. Later, increasing suppression of local
autonomy by the government in an attempt to solve the polygamy problem was
met with resistance but not obstruction. Leaders pursued a run-and-hide
rather than stand-and-fight policy. It is noteworthy that this period provided
an example of the United States government moving against an organized religion
for what it regarded as immoral and offensive religious practices. The government
claimed that "anti-monogamy was anti-American." Such opposition
blurred the line between church and state, the same practice of which Mormons
As a result of federal action against polygamy, basic constitutional guarantees
were violated; twelve thousand Mormons were disenfranchised by the Edmunds
Act of 1882; women were forced to give testimony in court against their
husbands; ex post facto laws punishing previous actions and bills of attainder
against a certain class of citizens--polygamists--were enacted. Religious
oaths were instituted. The assumption of guilt until proven innocent, delayed
naturalization of applicants, and the disruption of trial by jury peers
caused a clash of territorial administration policies with constitutional
Mormons venerated the Constitution, since to them it protected personal
choice and free agency. They argued that the First Amendment guaranteed
freedom and free exercise of religion and that the Anti-Bigamy Act of 1862,
the Edmunds Act of 1882, and the Edmunds-Tucker Act of 1887 violated the
Bill of Rights. To them, the equal protection and the privileges and immunities
clauses of the Fourteenth Amendment guaranteed their marriage practices.
They had enjoyed their rights as former citizens of states, and felt such
rights were transferable to the territory. Marriage, they claimed, is a
contract between two individuals and cannot be impaired by state or federal
action. It was argued that the Tenth Amendment reserved domestic powers
like marriage to the state, thereby prohibiting federal intervention. These
arguments mirrored the legal claims of the states' rights advocates prior
to the Civil War.
The action of Congress was a historic departure. There was scant precedent
for its action in objecting to religious tenets rather than dealing with
the issue of territorial autonomy and statehood per se. However, upon challenge,
the Supreme Court of the United States upheld the actions of Congress in
Reynolds v. United States (1879), saying that a secular regulation
against polygamy was within the constitutional powers in the territories.
The court also used Thomas Jefferson's view that there was a distinction
between freedom of conscience and freedom of conduct. The federal assault
on polygamy became an assault on the Mormon Church through economic sanctions
and the taking of property, which did not cease until the Manifesto of 1890
ending new polygamous unions.
The quest for statehood was finally achieved in 1896 after seven attempts
in nearly half a century. The state constitutional convention met in Salt
Lake City beginning 4 March 1895, and lasted sixty-six days. The framework
for government was modeled after that of other states-- Nevada, Washington,
Illinois, and New York in particular. The convention retained the anti-government
philosophy of earlier 1872, 1882, 1887 documents. Yet in borrowing from
other state constitutions, simplicity was lost. Borrowing the Board of Examiner
provision from Nevada fragmented executive power since the governor shared
the executive role of reviewing claims for payment. The legislature was
allowed to further fragment executive power by the creation of boards and
agencies. This popular distrust of government was widespread in late nineteenth-century
America. In addition, complicated protections for religious freedom and
the freedom from sectarian controls as well as injunctions against the union
of church and state were placed in the document. Checks and balances were
sometimes carried to extremes.
While statehood brought home rule and self-government without federal intervention,
the fact that 75 percent of Utah's land mass was owned by the federal government
guaranteed federal involvement in state and local government matters. Utah
leaders saw themselves as a colony in a federal empire throughout most of
the twentieth century, yet some Utah laws also had national importance.
In the area of social justice, legislation improving mine working conditions
was upheld before the U.S. Supreme Court in Holden v. Hardy (1897).
A prohibition against women and children working in mines and a regulation
of trade and work dangerous to the health and morals of children were also
enacted. A juvenile court was created in 1905 to keep youth under eighteen
years of age out of the criminal justice system.
In the 1920s, national Prohibition brought intrusion of the law into private
lives and placed otherwise respectable people on the fringes of the law.
It helped bring a cooperative federalism between the state and the national
government, although in Utah much enforcement energy was spent in law enforcement
agencies watching each other. The low salaries of lawmen and prosecutors
contributed to problems with bribes and enforcement difficulties.
During the Great Depression cooperative federalism and mutual state-federal
programs were accelerated. Utah declared a bank holiday in advance of the
federal government's call for a national bank holiday. National industrial
codes were adapted to Utah's needs, particularly in the coal industry. A
voluntary moratorium on foreclosure of home mortgages was enacted by the
state legislature in order to obtain federal monies.
The absence of a tradition of strong positive government provided a dilemma
for lawmakers facing overwhelming welfare needs during the Great Depression.
They were unwilling to finance unemployment compensation; yet, ironically,
Utah received among the highest per capita federal expenditures in the nation.
And at the end of the Great Depression when federal monies were reduced,
the state reduced its welfare and social services outlay. The many forms
of taxation created to offset the reduced property tax would become available
for future uses.
With World War I and its aftermath, the spirit of cooperative federalism
was expanded through grants in aid, transfer payments, general revenue sharing,
payments in lieu of taxes (PILT), and block grants. Such programs characterized
financial federalism till the mid-1980s.
Periodic efforts to expand or maintain state rights within the federal system
were demonstrated by objections to federal laws and mandates requiring compliance
with federal policies. A dispute over the ownership of the Great Salt Lake
with its rich mineral resources was resolved in the courts in favor of the
state. A sagebrush rebellion to control the exchange and utilize the resource
of public lands was noteworthy in the 1970s and early 1980s.
The character of twentieth-century legal developments focused on modernizing
archaic provisions in the law and state constitution which had been deliberately
placed to restrict the ability to govern. Concerns were expressed that state
government was declining in power and that its functions were passing to
the federal government. Constitutional revisions occurred to help fit a
modern state government in a dynamic federal system. The formation of a
state Constitutional Revision Committee and of a little Hoover Commission
in 1965 went beyond earlier attempts to modernize the Board of Examiners
and strengthen the governor's power. Earlier reforms in 1921, 1933, and
1941 had served mainly to duplicate and proliferate executive agencies and
commissions, not to centralize and strengthen the governor's office.
Enhanced public participation in the legislative process was furthered by
requiring the legislature to meet once a year, and by the introduction of
budget sessions and of special sessions, which the governor was empowered
to convene for extraordinary purposes. In addition, the establishment of
interim legislative study committees provided greater deliberation of issues
and continuity between legislative sessions. A legislative council was introduced
to help control elected officials. Such innovations enhanced the law-making
process and strengthened the base of democratic institutions.
The modernization of local governments was begun when the nineteenth-century
mayor-council form of government, often impotent and fraught with corruption,
was reformed across America in the early twentieth century. The professional
commission form of local government was put in its place. In 1959 legislation
was approved permitting a strong-mayor form of government, which separated
the powers of the board of commissioners from those of the mayor.
In 1971 the legislature proposed a constitutional amendment permitting similar
optional forms for county governments through a referendum of the people.
A variety of structural and management options was allowed, but most communities
have been reluctant to introduce or approve these options. Municipal growth
and development brought problems and occasional clashes within and among
local government bodies. The local government reform process requires time
and common sense. In 1978 a Boundary Commission Act permitted cities and
counties to resolve annexation and boundary disputes in a non-judicial forum.
The enactment by the legislature of fiscal procedures, purchasing, personnel
management, and merit system laws in the 1970s and 1980s has improved the
quality of state and local governments.
Coordination and planning on a regional and countywide basis to meet problems
of air quality, transportation, and water management have been possible
through councils of governments. Many local government services have been
merged and are continuing to merge on a gradual basis, revealing the recognition
of the increasing complexity of law enforcement, health, public safety,
and environmental needs.
The legislature, while diversifying its resources and powers to meet a growing
population and economy, generally has been reluctant to grant cities and
counties home rule powers to tax and make policy, preferring to retain those
powers. Yet, this attitude brings its own frustration to the legislature
when it wonders why local governments keep coming to it for authority to
solve local problems. Significantly, state and local governments continue
to spend far less per capita than most of their counterparts nationally.
Historically, the courts in Utah have not been politically detached. Judges
have stood for election or were appointed for their political persuasion,
and were thereby subject to the winds of change. In 1967 a bipartisan nominating
process was created to provide names of potential judges to the governor
for appointment. This was extended to include the district and circuit courts;
and local Justices of the Peace, while once elected, became appointed in
the 1990s. Many judges had careers as city and county attorneys. The quality
of training has enhanced the legal profession and improved the decisions
rendered by the courts.
The legal institutions of Utah continue to reflect the ambivalent attitudes
about encroachment by the federal government, as was also the case in the
nineteenth and throughout the twentieth centuries. The pubic generally greets
the positive actions by government at all levels reluctantly. Government
and the law, while not necessarily considered evil, appear to be most accepted
when they deal with emergencies and the absolutely necessary. Very often,
policies and legislation which carry a moral force are likely to win approval.
This, coupled with an occasional flair of individualism, has given distinctiveness
to Utah legal institutions.
See: Nels Anderson, Desert Saints (1966); Leonard Arrington, Great
Basin Kingdom (1966); Utah Foundation, State and Local Government
in Utah (1973); John J. Flynn, "Federalism and Viable State Government:
The History of Utah's Constitution," Utah Law Review (1966);
John Nebeker, "Early Justice in Utah," Utah Historical Quarterly
3 (1976); Arvo Van Alstyne, "Local Government Modernization: A Utah
Perspective," Utah Law Review (1971).
D. Michael Stewart