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Disturbances at
Provo, Utah,
March-April, 1859.

An incident growing out of the instructions of June 29, 1857, to Colonel Johnston, which occurred in the spring of 1859, is illustrative of the necessity of restricting the use of the Army as a posse comitatus to cases where the services of a civil posse are either inadequate or unobtainable. Under date of March 6, 1859, Judge Cradlebaugh, of the second judicial district of Utah, advised the department commander that he had issued a warrant for the apprehension of a large band of organized thieves and murderers, who would be tried at the city of Provo; that there was no jail within the district, and the prisoners would therefore need to be held under military guard; and that without such aid he would be unable to secure their trial and conviction. In accordance therewith, a company of infantry was sent to Provo under the command of Captain Heth, of the Tenth Infantry, with instructions to guard the prisoners and witnesses. On arriving at Provo Captain Heth found himself obliged to encamp within the city limits, there being no available ground beyond them. This act certain of the citizens, including the mayor and council, were pleased to regard as “a military occupation," and a direct interference with the municipal regulations, while others, perhaps a small minority of the residents, insisted that the presence of the troops was an absolute necessity. When the arrests came to be made it was discovered that among them was the mayor of Provo and other leading Mormons, who were charged with having been engaged in one or more atrocious murders. The arrest created intense excitement, and thousands of people crowded into the town from the surrounding country. A rescue was feared, and the city marshal summoned 200 additional policemen. The department commander, without withdrawing Captain Heth, sent a considerable additional force, under Major Paul of the Seventh Infantry, with instructions to camp outside the city and act only in an emergency. The governor now visited Provo, decided that the civil authorities were able to maintain the peace, and requested that the troops be withdrawn. This request was refused by General Johnston, who declined to make any change in the disposition of Captain Heth's company or to withdraw the reinforcements. To Governor Cumming he writes, under date of March 22, 1859:

To prevent any misunderstanding hereafter, I desire to say to your excellency that I am under no obligation whatever to conform to your suggestions with regard to the military disposition of the troops of this department, except only when it may be expedient to employ them in their civil capacity as a posse, in which case, should the emergency arise, your requisition for any portion of the troops under my command will be complied with, and they will be instructed to discharge the duty pointed out.

Two days later General Johnston was advised by the United States marshal for the Territory that the whole community about Provo

S. Doc. 209-7

were engaged in aiding offenders to evade arrest; that he finds it impossible with the means at his command to execute the processes of the court, and therefore he needs at least 200 troops. This number Major Paul was directed to furnish under these instructions:

The General wishes you to direct the officer in command in all matters relative to the civil duties required of him, to be governed by the marshal or other United States officer under whose direction he acts; and if, in the arrest of any person or in the execution of any duty, resistance is offered, he will require of the civil officer how that resistance is to be overcome, whether by the bayonet or firing, etc., and give distinct notice to his men how it is to be done, and that it is to be done by order of the United States marshal or other persons; for example: "The United States marshal orders that this crowd be dispersed, to arrest so and so, and that you charge bayonets upon it, or fire upon it," as the case may be; "charge bayonets, forward, march, etc.; or ready, aim, fire,” etc.

The punishing of these men, and the consequent trial and conviction of a large number of lawless men who had long enjoyed immunity from punishment, created great indignation among the Mormon element and deep complaints to the authorities at Washington. This resulted in the following instructions to General Johnston, which, while they satisfied one part of the community, gave great offense to the other, and, as was soon made manifest, caused much discontent and seriously retarded the administration of the courts:

WAR DEPARTMENT, Washington, May 6, 1859. SIR: The change which seems to have taken place in the condition of things in Utah Territory, since the date of your former instructions, renders some modifications of those instructions necessary.

Peace being now restored to the Territory; the judicial administration of the laws will require no help from the army under your command. If the service of the United States troops should be needed under any circumstances, it could only be to assist the executive authority in executing the sentence of law or the judicial decrees of the court; and that necessity could only arise when the services of a civil posse were found to be insufficient. You will therefore only order the troops under your command to assist as a posse comitatus in the execution of the laws, upon the written application of the governor of the Territory, and not otherwise.

The fidelity with which you have obeyed the instructions of this Department heretofore given you is the fullest guarantee that you will with the saine zeal and efficiency conform to these.

I am, General, very respectfully, your obedient servant,

Brevet Brig. Gen. A. S. JOHNSTON,

JOHN B. FLOYD, Secretary of War.

Commanding Department of Utah, Camp Floyd, Utah Territory.

Immediately on receipt of these instructions General Johnston called upon Judge Cradlebaugh to make arrangements to take over the prisoners and witnesses then under charge of the troops, and later, no response being made to his first communication, advised the marshal that he "will deeply regret to turn loose upon this community men charged with committing the most atrocious crimes, and holding in terror a portion of its members, but unless they are soon taken from the custody of the army he will have no other alternative.”

The United States marshal, having no jail or other place of confinement for his prisoners, was forced to see them released, save one or two men who, having been convicted of murder under particularly atrocious circumstances, were held until he had raised a strong posse to conduct them to Salt Lake City."

Whether the occurrences at Harpers Ferry, Va., on the 16th, 17th, and 18th days of October, 1859, are to be characterized as an "insurrection” within the meaning of the law is believed to depend largely upon the point of view. On the 14th of December, 1859, the Senate of the United States appointed a select committee "to inquire into the facts attending the late invasion and seizure of the armory and arsenal of the United States at Harpers Ferry, in Virginia, by a band of armed men, and report," among other things, "whether the same was attended by armed resistance to the authorities and public force of the United States, and by the murder of any of the citizens of Virginia, or of any troops sent there to protect the public property, and whether such invasion and seizure was made under cover of any organization intended to subvert the government of any of the States of the Union." The majority of this committee, composed of Senators J. M. Mason, Jefferson Davis, and G. N. Fitch, reported that in their opinion the invasion was in no sense of that character implied by the language of the fourth section of the fourth article of the Constitution, but was "simply the act of lawless ruffians, under the sanction of no public or political authority-distinguishable only from ordinary felonies by the ulterior ends in contemplation by them, and by the fact that the money to maintain the expedition, and the large armament they brought with them, had been contributed and furnished by the citizens of other States of the Union, under circumstances that must continue to jeopard the safety and peace of the Southern States, and against which Congress has no power to legislate.'

The minority, composed of Senators Jacob Collamer and J. R. Doolittle, while agreeing that the affair was a senseless and deplorable outrage, found no evidence that any other citizens of the Union than those with Brown were accessory to the outbreak, had any complicity with the conspiracy, or any suspicion of its existence or design before its explosion. Briefly, the facts as disclosed by the Congressional inquiry, are these:

On Sunday night, the 16th of October, 1859, between 11 and 12 o'clock, a party of 18 armed men, led by one John Brown, who had been active in the disturbances in Kansas in 1855-1857, crossed the bridge connecting the States of Maryland and Virginia at Harpers Ferry, and, entering that village, proceeded quietly to take possession of the buildings of the United States armory and arsenal, which were

a Annual Report of the Secretary of War for the year 1859, pp. 124–244, “Affairs in the Department of Utah."

The affair at

October 16-18, 1859.

guarded by a single watchman. Establishing themselves in a strong brick building near the gate, used as an engine house, Harpers Ferry, Va., they stationed sentinels at the bridge, the street corners, and at the main buildings of the armory, sent out and arrested several gentlemen living in the country near the Ferry, and by morning had them and some ten others confined in the engine house. When the workmen and others left their houses in the morning they were seized and taken to the watchhouse adjoining the engine house until, with those already there, they numbered some thirty to forty. The first alarm came through the stopping of a train of the Baltimore and Ohio Railroad at about half past 1 in the morning by a sentinel at the bridge and its unnecessary detention for some hours. The passengers when released carried the intelligence to Charlestown, some 10 miles to the west, and to Martinsburg, about 10 miles farther, when the citizens assembled, armed themselves, and lost no time in proceeding to Harpers Ferry.

By noon of Monday, the 17th, the citizens of Harpers Ferry, aided by those from the neighboring towns, assembled in front of the gate of the armory, which they carried by assault, and succeeded in liberating all of the prisoners in the watchhouse, but were unable to dislodge the party in the engine house. During the day an irregular fire was kept up on both sides, resulting in the killing of three and the wounding of many others, but there was no organized attack until late in the afternoon. By that time volunteer companies from Charlestown, Sheppardstown, and Martinsburg had arrived, followed by a company from Winchester and three from Frederick, Md., and later in the evening by four companies from Baltimore, but it was then too late for aggressive operations.

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Immediately upon the receipt of the intelligence at the War Department, the most available troops-a detachment of marines from the Washington Navy-Yard-were sent to Harpers Ferry, and by a later train Lieut. Col. Robert E. Lee, Second Cavalry, proceeded to the scene of disturbance, under special instructions of the Secretary of War to take command of the troops and of all operations at that point. In the belief that this was merely the outbreak of a serious insurrection, orders were sent to Fort Monroe for troops to proceed at once to Baltimore, and a detachment of 11 officers and 142 men left by the night boat of the 17th. Another party was dispatched from New York Harbor, and the troops at Fort McHenry were directed to hold themselves in readiness to move at an hour's notice. The President issued the usual proclamation, which was intrusted in manuscript to Colonel Lee, to be published at Harpers Ferry on his arrival. Colonel Lee arrived at Harpers Ferry about midnight of the 17th, by which time the excitement had reached a panic, and at once marched the marines to the armory grounds and surrounded the building within which the insurgents were concealed. At daylight he sum

moned them to surrender, and upon their refusal lost no time in storming the building. The contest was over in ten minutes, by which time of Brown's party of 19, 12 were killed, 2 had managed to escape, and 5, including Brown, were prisoners. During the various | assaults 5 citizens of Harpers Ferry and 1 marine had been killed, and 8 citizens and 1 marine wounded. In the conviction that with the suppression of this party nothing was left of the conspiracy, and that the insurrection was at an end, Colonel Lee decided that the publication of the President's proclamation was unnecessary, and returned it with his report to the Secretary of War. The prisoners were turned over to the civil authorities, and the troops returned to their proper stations."

It will scarcely be contended that these circumstances establish anything beyond an insane demonstration on the part of a handful of reckless men, without definite purpose, plan, or hope of success. There was nothing elicited during the long trial of Brown, or the careful investigation by the Senate, to show that the negroes in the vicinity of Harpers Ferry or elsewhere had any knowledge of Brown's intentions, much less of any sympathy or purpose to join him. The negro insurrection at Southampton, already referred to, in which over fifty persons were murdered, was of infinitely more consequence in the light of a menace to the State government. Whatever measure of success is associated with the affair grows out of the fact that the Government property at Harpers Ferry was for the moment unguarded. Had there been a garrison of even the smallest detachment usually located at arsenals and armories, it is probable that these marauders would have never passed through the outer gates.57 Viewed in the light of an invasion or a serious insurrection against government, the incident possesses little or no value.

It is not within the plan of this work to enter upon a discussion of the circumstances which led up to the condition of public affairs that existed on the 4th day of March, 1861, at the installation of President Lincoln. It will suffice for the purposes of continuity of narrative to say that on the 20th of December, 1860, the people of South Carolina in convention declared themselves absolved from any allegiance to the United States, and that this was followed by successively similar action on the part of Georgia, Alabama, Mississippi, Louisiana, and Florida. The forts, arsenals, and other military depots in those States, with few exceptions, as well as in North Carolina, Arkansas, and Texas, had been surrendered by their commanders or seized by the authorities of those States, and to all intents and purposes the functions of the Federal Government were suspended. As remarked by the President in his message

a Senate Report Committee 278, Thirty-sixth Congress, first session; Report of Secretary of War, 1859, p. 17. Original papers on file in A. G. O. 386, W. 1859, and papers filed therewith.

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