GREAT SALT LAKE CITY, OCTOBER TERM, 1851.
1:95
PLEASE THE COURT, AND GENTLEMEN OF THE JURY-With the blessing of theAlmighty, although not in a proper state of health, I feel disposed to offera few reasons, and to present a few arguments, and perhaps a few authorities,upon the point in question. In the first place, I will say, gentlemen ofthe Jury, you will have to bear with me in my manner of communication, beingbut a new member of the bar, and unaccustomed to addressing a Jury. Thecase upon which I am called to address you is one of no small moment. Itis one which presents before you, and to investigate which involves, thelife of a fellow-citizen.
I am not prepared to refer to authorities on legal points, as I wouldhave been had not the trial been so hasty; but as it is, I shall presentmy arguments upon a plain, simple principle of reasoning. Not being acquaintedwith the dead languages, I shall simply talk the common mountain English,without reference to anything that may be technical. All I want is simpletruth and justice. This defendant asks not his life, if he deserves to die;but if he has done nothing but an act of justice, he wishes that justiceawarded to him.
It is highly probable that the manner on which I may present my arguments,may be exceptionable to the learned, or to the technical policy of moderntimes; be that as it may, the plain simple truth is what I am aiming at.
I am happy to behold an intelligent jury, who are looking for justiceinstead of some dark, sly, or technical course by which to bias their judgment.I shall refer in the first instance to an item of law, which was quotedby the learned prosecutor yesterday, in which he stated to this jury, thatthe person killed should be, or must be, a reasonable creature. Now whatdark meaning, what unknown interpretation the learned and deep-read menof law may give by which to interpret this language, it is impossible forme to say; as I said before, it is the plain mountain English I professto talk. It was admitted on the part of the prosecution, that James Monroe,who is alleged in this indictment to have been killed by Howard Egan, hadseduced Egan's wife; that he had come into this place in the absence ofher husband, and had seduced his family, in consequence of which, an illegitimatechild had been brought into the world; and the disgrace which must arisefrom such a transaction in his family, had fallen on the head of the defendant.This was admitted by the prosecution. Now, gentlemen of the jury, accordingto plain mountain English, a reasonable creature will not commit such anoutrage upon his fellow man; that is the plain positive truth as we understandthings.
But, perhaps, this defendant is to be tried by the laws of England,and perhaps in England they have a different understanding of the passage.Suppose I admit it for argument's sake. It was a point repeatedly arguedand decided by Chancellor Kent, that every honest man was a lawyer, andthat the intent of the law was to do justice. The Statute or Organic Lawof Utah, which extends the laws of the United States, and secondly, in adegree, the laws of England, over this country, makes a reservation in thematter, which reservation I wish you to consider favorably, for the benefitof my client-."The laws of the United States are hereby extended, anddecreed to be in force for said territory, so far as the same or any provisionthereof may be applicable." Now we do not consider the wise legislatorsextended these laws over this territory, only that they should be extendedwhere they should be applicable; they no doubt supposed they might not beapplicable in certain cases, and therefore wisely inserted that clause.Then, if a law is to be in force upon us, it must be plain and simple tothe understanding, and be applicable to our situation.
I will quote history instead of law. I will go back to the time whenRome was a young and flourishing state; when in the midst of prosperitythey thought proper to procure a code of laws; and being wilderness men,they sent to the wise and learned Greeks for a code of laws. The wisestlawyers of Greece were selected, who formed first a code written upon tentables, and finally added two others, which were received by the Roman Senate.Now I wish you to understand me as bringing this up by way of illustration,knowing that these men before me are sworn to execute justice, and if Ican illustrate this to their understanding, one point is gained, so faras it has a bearing upon this case.
The laws of the twelve tables were formed for a people possessing theGreek refinements and Greek ideas, Greek notions of right and wrong; theselaws were made according to a genius of liberty known among that ripenedconfederacy. They were brought to Rome, to a people entirely different intheir genius, who placed different values upon different points, and haddifferent views of right and wrong; they had to put them in force: and,let me ask you, what was the result? Read the pages of history, and hundredsof mourning families will tell the sad tale! The truth is written with theblood of thousands, through taking the rules, laws, and regulations of anold and rotten confederacy, and applying them to a new and flourishing territory!I argue, then, that these laws, which may have force in Old England, aretotally inapplicable to plain mountain men.
I want to inquire whether the genius, and the spirit, and the actualexisting principle of justice and right, which abide in the inhabitantsof these mountains, are the same as those found among the nations of theold world? And whether such an application of law and justice as that Ihave just noticed is applicable to us?
In England, when a man seduces the wife or relative of another, theinjured enters a civil suit for damages, which may perhaps cost him fivehundred pounds, to get his case through; and, as a matter of course, ifhe unfortunately belongs to the toiling million, he may get twenty poundsas damages. In this case, character is not estimated, neither reputation,but the number of pounds, shillings, and pence alone bear the sway, whichis common in courts of all old and rotten governments.
In taking this point into consideration, I argue that in this territoryit is a principle of mountain common law, that no man can seduce the wifeof another without endangering his own life. I may be asked for books. Commonlaw is, in reality, unwritten law; and all the common law that has beenwritten is the decision of courts; and every time some new decision comesup, it is written, which you may find stacked up in the Attorney General'soffice, in Great Britain. This is continuing: fresh decisions are stillbeing made, and new written authorities added, and precedent upon precedentestablished in the courts of the United States and Great Britain; and mustwe be judged by these ten thousand books?
What is natural justice with this people? Does a civil suit for damagesanswer the purpose, not with an isolated individual, but with this wholecommunity? No! it does not! The principle, the only one that beats and throbsthrough the heart of the entire inhabitants of this Territory, is simplythis: The man who seduces his neighbor's wife must die, and her nearestrelative must kill him!
Call up the testimony of the witness, Mr. Horner, and what does he say?After Mr. Egan had killed Monroe, he was the first one to meet him. Egansaid, "Do you know the cause?" Mr. Horner had been made acquaintedwith it; he said he advised Monroe, and told him for God's sake to leavethe train, for he did not wish to see him killed in his train. Mr. Hornerknew the common law of this Territory: he was acquainted with the geniusand spirit of this people: he knew that Monroe's life was forfeited, andthe executor was after him, or he (the executor) was damned in the eyesof this people for ever. "Do leave the train," says Horner; "Iwould not have you travel in it for a thousand dollars."-Was Monroea reasonable creature? A dog that steals a bone will hide away; but willa man be called a reasonable creature, when he knows the executioner ison his track, and at the same time walk right over the law, crawl betweenthe sheets of a fellow-citizen, and there lay his crocodile eggs, and thenthink to stow away gunpowder in a glowing furnace? If we are called uponhere to say whether a reasonable creature has been killed, a negative replyis certain.
Not Mr. Horner only, who has testified that he knew the cause of thedeed, but a number of others. When the news reached Iron County, that Egan'swife had been seduced by Monroe, the universal conclusion was, "therehas to be another execution;" and if Howard Egan had not killed thatman, he would have been damned by the community for ever, and could nothave lived peaceably, without the frown of every man. Now we see that thelaws of England only require a civil suit for damages, in a case of seduction;but are these laws to be applied to us who inhabit these mountain heights?The idea is preposterous. You might as well think of applying to us thelaw of England which pertains to the sovereign lady, the Queen, alone. Iwill apply it, and with much better sense: "To seduce the sovereignlady, the Queen, is death by the law." I will say, here, in our ownTerritory, we are the sovereign people, and to seduce the wife of a citizenis death by the common law.
There is no doubt but this case may be questioned, but there is an Americancommon law, as well as an English common law. Had I the books before me,which are at hand in the public library, I might show you parallel instancesin the United States, where persons standing in a like position to thisdefendant have been cleared. I will refer to the case of "New Jerseyv. Mercer," for killing Hibberton, the seducer of his sister. The circumstancetook place upon a public ferry-boat, where Hibberton was shot in a closecarriage in the most public manner. After repeated jury sittings upon hiscase, the decision was NOT GUILTY. We will allow this to be set down asa precedent, and, if you please, call it American common law. I will referto another case: that of "Louisiana v. Horton," for the killingof the seducer of his sister. The jury in this case also found the prisonerNOT GUILTY. This is the common practice in the United States, that a manwho kills the seducer of his relative is set free.
A case of this kind came under my own observation in Kentucky. A man,for taking the life of the seducer of his sister, was tried and acquitted,although he did the deed in the presence of hundreds of persons: he shothim not more than ten feet from the Court House. I saw the prosecutor, andconversed with him, and have a knowledge of the leading facts. I bring theseinstances before the jury, to show that there are parallel cases to theone before us in American jurisprudence; and yet, in some of the Statesa civil suit for damages will answer the purpose.
Walker, on this subject, for instance, in the State of Ohio, tells usin cases of this kind a civil suit may be instituted, and a fine be imposed;the civil suit may bring damages according to the character of the person,and that is considered an equivalent for the crime. What is the reason thatthese civil suits are tried in this way? It is because the spirit whichactually reigns in these rotten and overgrown countries is to prostitutefemale virtue.
Go to the cities of Great Britain, where the census reports betweentwo and three hundred thousand prostitutes: if a man seduces a female, nomatter how it occurs, a few pence is all the scoundrel pays. He damns thewoman, who is consigned to infamy, and compelled to linger out a short existence,and ultimately covers her shame, seeking repose in a premature grave; andthis is the spirit and genius, not only of the people of Great Britain,but of some of the States also. How is it here in these mountains, wherethe genius, spirit, and regulations of society are different from thoseold nations? Why, men are under the necessity of respecting female chastity,when a seducer is no more secure abroad than the dog is that is found killingsheep. Female virtue is not protected by those old governments; but theyare corrupt institutions, which prostitute and destroy the female characterand race.
Just consider this matter. Are the law, the genius, the spirit, andthe institutions of a people who go in for preserving inviolate-in perfectinnocence, the chastity of the entire female sex-are they to compare withthe spirit and the genius of communities that only value it by a few dimes?Is that law to be executed on us? I say that the Congress of the UnitedStates have wisely provided that the laws of the United States shall notextend over us any further than that they are applicable.
The Jury will please to excuse my manner of treating this matter: Iam but a young lawyer-this is my first case, and the first time I ever undertookto talk to a Jury in a court of justice. I say, in my own manner of talkingupon the point before you, a fellow citizen, known among us for years, istried for his life; and for what? For the justified killing of a hyena,that entered his sheets, seduced his wife, and introduced a monster intohis family! and to be tried, too, by the laws of a government ten thousandmiles from here!
If Howard Egan did kill James Monroe, it was in accordance with theestablished principles of justice known in these mountains. That the peopleof this Territory would have regarded him as accessory to the crimes ofthat creature, had he not done it, is also a plain case. Every man knewthe style of old Israel, that the nearest relation would be at his heelsto fulfil the requirements of justice.
Now I wish you, gentlemen of the jury, to consider that the United Stateshave not got the jurisdiction to hang that man for this offence: the lawsare not applicable to it; they have ceded away the power to do that thing:it belongs to the people of this territory; and, as a matter of course,we deny the right of this court to hang this defendant, on principles thathave been ceded away to somebody else to act upon.
For instance, the learned attorney for the prosecution read a certainitem in the law of the United States yesterday to the jury, that they mightknow how to act. Now this is presented to us as a case of exclusive jurisdiction,and, as a matter of course, no common law must be brought in, but we arecalled upon to hang a man according to the customs of a nation ten thousandmiles from here, whose principles, organization, spirit, ideas of rightand wrong, of crime and justice, are quite different from those which prevailin this young and flourishing territory. To enforce these laws would behighly pernicious to our prosperity as a people, and as a nation. Therefore,Congress has wisely provided that the people of this territory should notbe thus imposed upon; for instance, as long ago as Sept. 9, 1850, they passedan act providing for the organization of a judiciary, that an original jurisdictionshould be acknowledged, as far as the same be applicable to us, AND NO FURTHER.This act of killing has been committed within the Territory of Utah, andis not therefore under the exclusive jurisdiction of the United States.
I have been admitted to speak before this intelligent court, for whichI feel grateful; and I come before you, not for the pence of that gentleman,the defendant, but to plead for the honor and rights of this whole people,and the defendant in particular; and, gentlemen of the jury, with the limitedknowledge I have of law, were I a juryman, I would lie in the jury-roomuntil the worms should draw me through the key-hole, before I would givein my verdict to hang a man for doing an act of justice, for the neglectof which he would have been damned in the eyes of this whole community.
I make this appeal to you, that you may give unto us a righteous verdict,which will acquit Mr. Egan, that it may be known that the man who shallinsinuate himself into the community, and seduce his neighbor's wife, orseduce or prostitute any female, may expect to find no more protection thanthe wolf would find, or the dog that the shepherd finds killing the sheep:that he may be made aware that he cannot escape for a moment.
God said to Cain, I will put a mark upon you, that no man may kill you.I want the crocodile, the hyena, that would destroy the reputation of ourfemales to feel that the mark is upon him; and the avenger upon his path,ready to pounce upon him at any moment to take vengeance; and this, thatthe chastity of our women, our wives and daughters, may be preserved: thatthe community may rest in peace, and no more be annoyed by such vile depredations.
Should the jury feel it their duty to return a verdict in favor of thedefence, you are aware that you are borne out in this by the precedentsalready set up by the Courts of the United States in the few instances Ihave noticed; that the jurisdiction of the United States extending to thiscase, does not exist; that the laws of the United States do not apply toit at all; and as men who look for justice, as intelligent lawyers, knowingwhat is right and wrong, must know, that a verdict, such as the defendantdesires, will alone bear justly on the case.
I feel very thankful to the honorable court, and to the jury, as alsoto the spectators, for the audience given me; and, as I said, in the commencement,my health not being good, I was unable to take hold of this business soas to treat it in a manner to satisfy myself, and do justice to the caseof my client; and I would say further, what I have said has been in my ownmountain English; what the learned prosecutor may be able to show I cannottell; enough has been said to show you that this defendant has a right,upon just and pure principles, to be acquitted.