March 12, 1904
Ogden Hiles is a resident of Salt Lake and has been for the past 17 or 18 years (back to about 1886). He moved to Utah to accept an appointment as assistant United States attorney for the Territory of Utah. He continued in this position for about 3 and a half years. In 1895, he was elected as one of the judges of the third judicial district court and served 5 years there. Currently he practices law in Salt Lake City.
Mr. Tayler wants information on what Judge Hiles did during his time as an attorney for the Territory of Utah.
Mr. Hiles. From 1886 to 1889, I was in the United States attorney's office as assistant. And during what were called the polygamy prosecutions I drew more indictments and prosecuted more cases under the Edmunds law and the Edmunds-Tucker law than any other officer. My duties called me from Ogden to Salt Lake, to Provo and to Beaver, in all parts of the Territory; and, as I say, I drew more indictments and prosecuted more cases under those laws than any other officer. I examined hundreds and I may say thousands of witnesses during that time.Commentary: This testimony is similar to that given by Mr. Critchlow with a few pieces of history that cast more light on this time in history. Apparently the church had instructed its members to live only the law of God because the laws of man were inferior. Additionally, if you agreed to live man's laws, you were immediately in a state of apostasy - possibly subject to disfellowship or excommunication. The only way so many people that were prosecuted would say things like this is if they really believed it - and that comes from their ecclesiastical leaders.
Mr. Hiles. At that time , under orders from the Attorney-General's office here in Washington, we were directed to proceed and prosecute offenders against these laws with as much vigor as we could, and we did proceed, commencing in the forepart of 1886. There had been some prosecutions in 1885. We had not proceeded far before it was made very clear as a general fact - it was already pretty well known in the community - that the people of Utah were living under a theocracy, under a government of priests. This state or condition was disclosed by the examination of witnesses before the grand juries by the examination of jurors touching their qualification to sit as jurors in polygamy cases, as they were called.
Mr. Tayler. Now tell us definitely what you mean by that - what answers were given?
Mr. Hiles. Invariably, if we would ask a Mormon whether he would obey the laws of the United States, or the laws of the church, he would say that he would obey the law of the church. As stated by Mr. Critchlow yesterday, in every case - or in most every case - the judge would offer the defendant who was convicted the clemency of suspension of judgment if he would in future obey the law. He would say no. "Why not?" "Well," he would say, "I choose to obey the law of God rather than man-made laws." If we suggested that the laws of the Republic were mild and that any lady or gentleman of standing might live under them without coming in hostility to them, he would say it made no difference. If we asked him what the law of God was, he said it was that which was revealed to them in their Doctrine & Covenants and in the Bible, and was expounded to them by the authorities - that is to say, the authorities of the church ... It was regarded by the Mormons and by the priesthood as a badge of apostasy to agree to obey the law. I do not know that anyone was disfellowshipped for it, but it was considered an act of apostasy to agree to obey the law.
He goes on to say that after the 1887 Edmunds-Tucker Act that his court took advantage of the added offense of unlawful cohabitation or adultery. "We immediately took advantage of that in every case where we could bring a case of adultery." Because of this there was a lot of pressure upon the people of the Territory. These prosecutions were done against many poor people; people would could not pay fines. At this time "they commenced, and many of them would promise to obey the law, and did promise to obey the law, and judgment was suspended in every instance."
Mr. Hiles. After, in 1889, there was a more evident disposition on the part of the Mormon people to obey the law, and, as has been said, the people became restive under the continuous hammering of the Government to enforce the law ... Mormons and Gentiles at that time began to meet and discuss the situation. Before that they would not discuss the matter at all of the differences between Gentile and Mormon.Commentary: That was a quick history review, and I think was fairly well done.
In 1890 it was concluded that something would be done by the church toward an amelioration of these conditions, and upon that the Government seemed to relax its prosecution. There were prosecutions, however, all the way through 1890 up to the issuance of the manifesto in 1890, but there was some relaxation of the pressure of the law officers upon the people. There was a general disposition among all kinds of people to do something that would amerliorate these conditions, because it was a hardship upon the Mormon people.
I believe for a time there was an observance of [the manifesto of 1890], I do not know for how long; but gradually since statehood, as it is called, there has been a recurrence of those old conditions. Polygamous cohabitation has become more flagrant. We see continually coming on a new crop of polygamous children, and it seems to a great many people ... with whom I talk that they are getting back to old polygamous conditions and that they are not obeying the law of the State of Utah in that respect.
After the admission of Utah as a State, the polygamists took the position that there was no inhibition in the constitution of the State of Utah against polygamous cohabitation; that the inhibition was against polygamy merely, and that the framers of the constitution, having put in an interdiction a against polygamous marriages, new marriages, having omitted to say anything about polygamous cohabitation or unlawful cohabitation and those other offenses that were mentioned in the Edmunds law, that therefore there was no offense in Utah such as unlawful cohabitation and adultery. When I was judge a case come up before upon a habeas corpus in which counsel took that position, and I decided that the law was constitutional.
Senator Hopkins. Now, Judge, is it the practice of the church at each election, local and general, in the State to take part and select some for election and others for defeat?And that is the end of the direct-examination of Judge Hiles. Actually, that was a whole lot shorter than I expected.
Mr. Hiles. No; not as a rule. It is only occasionally. They do not take up each man on the ticket and say whether he shall be elected or shall not be elected, but if they do take up a man and say that he shall be elected, he will be elected.
Senator Hopkins. Is it any more than where a good Methodist is running, other good Methodist brothers think he is a little better by reason of that, and give him their vote? Or do they exert a wider and more potential influence in elections?
Mr. Hiles. Yes; their influence is more effectual because it is an organization which controls large masses of men and women. It is an organization which is distinct from the Government of the United States and the government of the State of Utah, and exercises political and secular control over the affairs of the people.
Mr. Van Cott does the cross-examination of Judge Hiles and sarts out his questioning with with asking for a specific example of where the Mormon Church has interfered in politics in the State of Utah within the last 5 years.
Mr. Hiles. Well, the election of Senator Smoot is one. Smoot would not have been elected to the United States Senate if he had not been approved by the authorities of the Mormon Church.Commentary: His opinion was stated, and it was then called into question by Mr. Van Cott and Senator Hopkins. From this reading, it would appear that Mr. Hiles is rather negative toward Reed Smoot and that his testimony (opinion) cannot be trusted in this specific matter. The previous testimony seemed fair and knowledgeable when he talked about the prosecutions.
Mr. Van Cott. Right there, Judge, before you go on, do you mean by that if Mr. Smoot had been a lay member in the church and had run for United States Senator he would not have been elected, or do you mean if he were an apostle and did not get a leave of absence or consent, that then he would have been defeated?
Mr. Hiles. I mean that Mr. Smoot would never have been elected United States Senator unless he had been an apostle and had received their consent and their indorsement. When Mr. Smoot's candidacy was announced and it was known that he had the consent of the church, it was then known that he would become Senator of the United States.
Mr. Van Cott. But Mr. Smoot was a candidate for Senator, was he not, before he became an apostle?
Mr. Hiles. Yes; a perfunctory candidate.
Mr. Van Cott. A perfunctory candidate?
Mr. Hiles. Yes. He was not seriously considered until he became an apostle and after his candidacy, subsequent to his apostolate.
Senator Hopkins. Do you mean that his standing in the Republican party of the State was such that he was not seriously considered until they learned that the church was for him?
Mr. Hiles. His standing in any party - the Republican party, the Mormon party, or any party. I mean he had no standing as a candidate for the United States Senate, and when it was known that he was a candidate, then everybody said, "Why, that is the end of it. That settles it."
Mr. Van Cott. And your opinion is, Judge, that he would not have been selected for United States Senator if he had not been an apostle?
Mr. Hiles. He would not.
Mr. Van Cott. And do you mean by that that no Mormon Republican would be selected for United States Senator unless he was an apostle, or do you not go to that extent?
Mr. Hiles. Oh, no; a Mormon may become a United States Senator without being an apostle, but I say that in Smoot's case he would not have been unless he was an apostle.
Mr. Van Cott. For instance, Judge, name one candidate for the United States Senate belonging to the Mormon Church and to Republican politics who you consider more prominent for the position than Mr. Smoot.
Mr. Hiles. Why, Governor Wells.
Senator Hopkins. The evidence, as I have undertsood it, is that Mr. Smoot has always acted with the Republican party out there and that his influence has been strong with that party and that he favored the election of men who belonged to that political faith.
Mr. Hiles. Yes; I think that is the history of it.
Senator Hopkins. Is it or is it not a fact that Mr. Smoot has been a consistent, straightforward Republican all his mature life, or ever since he took any part in politics?
Mr. Hiles. Well, I have heard so.
Mr. Van Cott. Do you know anything to the contrary?
Mr. Hiles. I know nothing to the contrary.
Mr. Van Cott. What are your means of knowledge that he would not have been elected if he had not been one of the twelve apostles?Commentary: He states this as opinion and not fact and is questioned on that by Senator Hopkins and cannot provide any facts that the committee can use. This again serves to qualify his testimony on this matter as opinion only.
Mr. Hiles. Because there are men in politics in Utah who have much more influence simply as politicians than he has and whom the people would prefer.
Senator Hopkins. Do you mean by that that his position in the party has been such that he had no reasonable claim to such a promotion?
Mr. Hiles. Yes; no reasonable claim to such a promotion, and if he had he could not obtain it, in my judgment. Of course, that is a matter of opinion.
Senator Hopkins. You are giving it as your opinion. Have you anything which you predicate that, which you can give this committee, which will enable us to judge from those facts?
Mr. Hiles. It is only from the general talk of men in the Republican party and in the Democratic party.
At this point Judge Hiles makes a flat out mistake. He's already gone off on his opinion of Senator Smoot's election and standing in the Republican party of Utah. I kind of feel sorry for him because the hole he's digging just keeps getting deeper and deeper, and consequently his believability or relevancy to this committee, are greatly diminished. He's being asked by Mr. Van Cott about the Senators that have been from Utah.
Mr. Van Cott. Now, the next Senator was J.L. Rawlins?Commentary: I have a suggestion: Think before you open your mouth. On Sunday, March 13, 1904, a letter is received by the committee from Mr. Rawlins on this subject to be read stating that he is, in fact, not a Mormon (see New York Times article on this subject here). This is just one more piece of the puzzle here that throws doubt on all of the testimony of Judge Hiles - even though I thought his opening statements were very well done. To close off this section he says: "I know what I am talking about sir." Doh! That just sealed his testimony with a stamp of arrogancy. I must say I'm not sure the cross-examiner had anything to do with walking the Judge into these mistakes; rather, it was more of the Judge making "unforced errors."
Mr. Hiles. Yes, sir.
Mr. Van Cott. He is not a Mormon?
Mr. Hiles. Yes; he is a Mormon.
Mr. Van Cott. Joseph L. Rawlins is a Mormon?
Mr. Hiles. Yes, sir ... I have heard Mr. Rawlins say he was not a Mormon. He was baptized a Mormon. He was reared among them. His father was a bishop - his father was Bishop Rawlins.
Mr. Van Cott. Becaues he was born of Mormon parentage and because his father was a Mormon, do you understand that that makes him a Mormon?
Mr. Hiles. Pretty close.
Mr. Van Cott. Pretty close?
Mr. Hiles. Yes.
Mr. Van Cott. So that if persons leave the church and if they happen to be of Mormon parentage, in your opinion they are pretty close to being Mormons. Is that right?
Mr. Hiles. Yes, sir.
Mr. Van Cott. That is right. Is all the testimony you have given along the line on which you have testified and do you speak with just as much knowledge on other matters as this, namely, that Joseph L. Rawlins is a Mormon?
Mr. Hiles. He is a Mormon under the qualifications I have named; yes, sir.
Mr. Van Cott. Under the qualifications you have named?
Mr. Hiles. Yes, sir.
Mr. Van Cott. That is, he is pretty close to being a Mormon?
Mr. Hiles. Yes, sir.
Mr. Van Cott. And all your other testimony is just along that same line; just as close?
Mr. Hiles. No; I do not qualify my other testimony as I qualify that. I know what I am talking about sir.
Mr. Van Cott. You do know that?
Mr. Hiles. Yes, sir; I know -
Mr. Van Cott asks him how he knows that polygamy and/or unlawful cohabitation have increased after 1890, and he wants the Judge to state specific instances if he knows of them.
Mr. Hiles. I know one instance, but I do not want to mention his name, because he is a friend of mine, although he is a polygamist.Commentary: Well ok now. He prosecuted case after case after case for law-breaking Mormon polygamists - with vigor. However, when it comes down to turning one in that is his friend and has been nice to him, he won't do it. He only wants to have prosecuted those people that he doesn't know. I find that very "human" of him and at the same time duplicitous and hypocritical.
Mr. Van Cott. We will excuse you from mentioning his name.
Mr. Hiles. That is to say, I have received acts of kindness from him, and I would not say anything that might be to his injury.
One interesting side not here is that there was discussion before the end of the day where Mr. Tayler was anxious to have 8 men who have been subpoenaed appear - but they have not. Because of this there are no more witnesses currently for the protestants and thus there is about one month of time taken off from the committee meetings. I assume that two of the men he is speaking of are M. F. Cowley and John W. Taylor - these two never do show up in Washington, they avoid the committee completely by not allowing themselves to be subpoenaed. I also assume the others he mentions would be Marriner W. Merrill (cannot come for health reasons), George Teasdale (cannot come for health reasons), and John Henry Smith (cannot come for health reasons; he does however, make it out eventually).
The committee adjourned at 4:25 PM.