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Mountain Common Law, Redux: The Extralegal Punishment of Seducers in Early Utah
Tamson Egan, circa 1865. Courtesy of the author.
Mountain Common Law, Redux: The Extralegal Punishment of Seducers in Early Utah
BY KENNETH L. CANNON II
Violence and extralegal justice were widespread in nineteenth-century America. White caps, regulators, vigilantes, Ku Klux Klansmen, lynch mobs, and various other extralegal groups carried out their own distinctive brands of justice generally through violent means all around the country. 1 Though these groups were not unknown in older parts of the country, most extralegal groups appeared in frontier areas of America where legal justice systems were often ineffective. The West was especially affected by these movements. 2
Utah was an enigma in the nineteenth-century American West. It was settled largely by a closely knit religious group that frowned on lawlessness (at least as the group viewed it) and placed a high premium on living together peacefully. The territory thus differed markedly from most of the Old West. As late as 1868 George Q. Cannon, a Latter-day Saint apostle and editor of the Mormon newspaper, the Deseret News, proudly reported that Utahns had not yet had to resort to vigilante justice. 3 Cannon’s assertion that vigilantes never operated in Utah seems to be largely accurate in the sense that organized vigilance committees were not formed; there were, however, some lynchings in Utah during the last half of the nineteenth century and some other instances of extralegal activity, so-called “justice.” 4 Utah’s Latter-day Saint majority, led by some of the church’s highest-ranking leaders, condoned and encouraged extralegal measures in at least one area: the punishment of “seducers.” Nearly forty years ago, I examined the social and legal views of early Utahns who appear to have approved the “unwritten law” surrounding punishment of seducers and the reasons for this societal approval of this specific form of activity outside the bounds of written and common law. I also compared Utah’s experience in this activity with the American experience generally. 5
In late 1851, three territorial officials appointed by President Millard Fillmore, “ran away” from Utah, claiming that they had been treated badly by the Mormons and that they feared for their lives. When they reached Washington, D.C., Chief Judge Lemuel H. Brandebury, Associate Judge Perry Brocchus, and Territorial Secretary Broughton D. Harris issued an inflammatory report about the residents of Utah Territory. 6 Among other allegations, the runaway officials asserted that two murders committed in the territory added to their fear for their safety. In both cases, the husband of a woman involved in an extramarital affair killed his wife’s adulterous partner. 7
In February 1851, Madison D. Hambleton killed Dr. John M. Vaughn in Manti. Vaughn had been having an adulterous affair with Hambleton’s wife while Hambleton “had been up north to work.” 8 Most Utahns who wrote about the matter described the relationship as Vaughn’s “seduction” of Mrs. Hambleton. Vaughn was a physician from Vermont who, while traveling through Utah had stopped, first in Great Salt Lake City and then in Manti, to practice medicine. According to Jedediah M. Grant, Vaughn was eventually baptized a member of the LDS church. He was soon found “abusing the facilities his medical character afforded him,” however, “and at length was detected in open delict with” Mrs. Hambleton. 9 Hambleton’s friends initially restrained him from physically punishing Vaughn, but Hambleton gave the doctor a “solemn warning” and Vaughn “promised reformation.” Vaughn’s “evil habits were too strong for him,” however, and, shortly after learning that Vaughn and his wife were continuing their intimate relationship, Hambleton “blew [Vaughn’s] brains out” on a Sunday after they attended church meetings. 10 A local diarist added the detail that Madison Hambleton “said that the children was all that saved his wife,” that is, that Hambleton might have killed her, too, “but for their children’s sake.” 11 Hambleton immediately surrendered himself to his bishop and was escorted to Great Salt Lake City where a court of inquiry was convened to investigate his act. Brigham Young, the president of the LDS church and recently seated governor of Utah, “spoke on the part of Hambleton.” 12 Mormon frontiersman Hosea Stout acted as attorney for the prosecution. The supreme court of the territory considered the case and did not pursue charges against Hambleton after what amounted to a preliminary hearing. Prosecutor Stout acknowledged that Hambleton’s action was justified. He recorded in his journal that Vaughn’s “seduction & illicit conversation with Mrs. Hambleton was sufficiently proven. I was well satisfied of [Hambleton’s] justification as well as all who were present and plead to the case to that effect. He was acquitted by the Court also by the Voice of the people present.” 13 The allegation that Vaughn had “seduced” Mrs. Hambleton highlights the problematic nature of “seduction” as a legal concept in the mid-nineteenth century. There is no indication that Mrs. Hambleton’s participation in the intimate relationship with Vaughn was anything but consensual. Seduction was important in nineteenth-century jurisprudence largely because of then-current notions held by many of the dominance of men over women. Seduction has become almost entirely archaic as a legal concept in the twentieth and twenty-first centuries.
Late 1851 saw Utah’s second case of an outraged husband killing his wife’s “seducer.” Howard Egan’s killing of James Madison Monroe and the murder trial that followed were more publicized at the time, have been discussed much more widely since, and are more memorable than the Hambleton case. Portions of the record of the trial of Howard Egan for the murder of James Madison Monroe are preserved, and the Egan case became the precedent followed in subsequent cases in Utah Territory.
Howard Egan was a colorful Mormon convert who came west with the larger body of Latter-day Saints in 1847. 14 He had previously served as a bodyguard for both Joseph Smith and Brigham Young and was sometimes numbered among the “Be’hoys,” who included Porter Rockwell, Ephraim Hanks, and other rugged Mormon men. 15 In 1849, he guided a group of would-be gold miners to California. When he returned to the Salt Lake Valley in the fall of 1851, he learned that Tamson, the first of his four wives and “in body a woman of the rarest beauty,” had been “seduced” by James Madison Monroe and had given birth to a child by him. 16
Howard Egan. Utah State Historical Society, photograph no. 39222001347108.
James Monroe had been a member of the LDS church for some time. He worked as a schoolteacher in Nauvoo, Illinois, where his pupils included children of Joseph and Emma Smith and Brigham and Mary Ann Young. 17 Jedediah Grant described him as a friend of William Smith, “the wayward brother of Joseph.” 18 Monroe became good friends with both Howard and Tamson Egan. There is no evidence that Tamson’s consent to the relationship was obtained through coercion or fraud; in fact, according to Monroe, Tamson initiated the intimate relationship in Nauvoo, which later resumed in Utah, after Monroe served a mission for the church in the East. 19 In December 1850, Monroe left Great Salt Lake City for the East to purchase and transport goods to be sold in Great Salt Lake City for his uncles, Colonel John Reese and Enoch Reese, prominent Latter-day Saint merchants. 20 Monroe was accompanying the goods and traveling with a Mormon wagon train bound for Utah when he learned from William Horner, the captain of the train, that Tamson had borne a son in June 1851 and that he was the father. 21 Monroe was also told that Howard Egan “had been advised to shoot me, and that if I come into the valley I will never leave it alive.” Monroe did not say who had advised Egan, whom he considered an “intimate friend, . . . which makes me blame myself still more” for having had an intimate relationship with Tamson, but the suggestion appears that someone told Monroe that it was Young who advised Egan to exact revenge on him. Monroe explained in his letter to Young that he would not enter Salt Lake Valley if he knew that Egan was going to kill him. 22 Horner testified at Howard Egan’s trial that he knew that Egan would seek to kill Monroe, that he told Monroe this, and that he had cautioned Monroe, “for God’s sake to leave the train, for he did not wish to see him killed in the train.” 23 The suggestion that Horner told Monroe to leave the wagon train to avoid being killed by Egan is inconsistent with Monroe’s vow not to enter the valley if he thought Egan would kill him. Indeed, Horner may have embellished his account to distance himself from Monroe’s death. Monroe was concerned that Egan would kill him once he arrived in the city, but he apparently did not consider the possibility that Egan would pursue him on the Mormon Trail. In fact, Egan had already left Great Salt Lake City and was bearing down on the wagon train in which Monroe was traveling, with the intent to kill him. 24 Egan soon reached the train.
By Jedediah Grant’s account, on September 19, 1851, Egan,
Instead, Egan tied up his horse and slept on his bear skin nearby until morning. He appeared early in the camp, and
The grand jury’s indictment for murder added, in tortured legalistic language, the grisly details that Egan had held his loaded pistol against Monroe’s face, then “discharged and shot off” the pistol, resulting in a “mortal wound . . . in & upon the right side of the nose a little under” Monroe’s eye. The wound was one inch wide and seven inches long, and “Monroe did then and there die.” 26 William Woodward, a fourteen-year-old boy in the wagon train, saw all this happen. He told how he witnessed “a stranger” ride in and “converse with Mr. Monroe.” Woodward heard a gunshot, then, when he next saw the stranger, the man said “‘gentlemen I have killed the seducer of my wife.’ He put his hand to his breast and said ‘vengeance is sweet to me.’” 27 A number of accounts of the meeting between the two men and the killing, including one recited by George A. Smith at Egan’s eventual murder trial, are in basic agreement. 28
Egan arrived back in Great Salt Lake City on September 21, the day after the killing, and news quickly spread that he had killed James Monroe. A church investigation was convened against Egan but the avenged elder was quickly exonerated in the church proceedings. 29 U.S. Marshal Joseph L. Heywood convened a grand jury on the instruction of Judge Zerubbabel Snow, a Mormon who was the last federally appointed judge in Utah Territory. The grand jury quickly indicted Egan for killing and murdering Monroe “feloniously willfully & of his malice affore thought & against the Laws, peace & dignity of the United States.” 30 On October 13, 1851, Judge Snow issued a warrant for Howard Egan’s arrest “on a charge of murder of one James Monroe,” and Marshal Joseph Heywood returned with Egan in tow. 31 Egan was cooperative and was arraigned in First District Court in Salt Lake City on October 14, 1851, and pled not guilty. 32 Snow then instructed Heywood to summon “forthwith” thirty-six jurors. 33 The trial began three days later, on October 17, 1851. 34 Egan’s defense was handled by W. W. Phelps, a prominent Latter-day Saint, and George A. Smith, an apostle. 35
Defense counsel filed a petition for a subpoena to require Tamson Egan to respond to certain questions because “Prisoner cannot go safely to trial without the testimony of his wife Tamson Egan, and being unable on account of Indisposition to attend court and wishing her testimony to be taken in the case.” 36 Tamson Egan was likely traumatized by her husband killing her lover just three weeks before and was not willing to testify in court. Judge Snow granted the petition, drafted questions, which he assigned William Snow, Esq. to ask her under oath:
The order required William Snow to “take the whole testimony and reduce it to writing, just as she relates it, seal the same up, and present the same to the Court, . . . with your name certified thereto, by tomorrow morning @ 10 o’clock.” William Snow completed the “deposition” the same day and filed the answers, although Tamson Egan’s answers are not in the court file, perhaps because Judge Snow had ordered that they be filed under seal. 38
The prosecutor in the case was U.S. District Attorney Seth M. Blair, still another prominent Mormon. 39 The jury was chosen, and the foreman appointed by the court or elected by the jury was none other than Daniel H. Wells, who would become a counselor in the First Presidency of the LDS church for over twenty years. 40 Blair’s prosecution “was very spirited,” and he called William Horner, George C. Robbins, James Wade, and George M. Moore to establish the circumstances of the killing. 41 The only witness about whose testimony we know much is Horner because George A. Smith recounted his testimony in his closing argument. According to Smith, Horner testified to the facts surrounding Egan’s killing of Monroe and also testified that he had warned Monroe to leave the wagon train to avoid Egan, a piece of testimony that is questionable, given Monroe’s letter to Brigham Young. 42
The defense appears to have called but one live witness, William Kimball, a close friend of Egan, but it was not the facts of the killing with which the defense concerned itself. 43 It was the “seduction” of Tamson Egan by James Madison Monroe that mattered to the defense and that the defense believed fully justified Egan’s actions. The minutes of the trial do not mention whether Tamson’s answers to the court-ordered questions were introduced into evidence at the trial, but the answers were delivered to the court the day before the first day of trial, and it is hard to believe that her answers were not introduced. 44 After the evidentiary portion of the trial concluded, Blair made his closing argument to the jury. Unfortunately, only piecemeal references to his arguments survive. He acknowledged that Monroe had fathered an illegitimate child with Tamson Egan, and, according to Smith, also admitted that Monroe had seduced Tamson, but that this did not excuse Egan’s premeditated killing. 45 Blair likely also made a potentially important jurisdictional argument that the homicide had taken place outside Utah Territory, in unorganized territory, where the federal government (and the district court hearing the murder trial) had sole jurisdiction. If this was the case, common law applied and George A. Smith’s “mountain common law” would have had no technical legal effect. The defense then made its arguments. W. W. Phelps went first, using the Bible, the classics, and “a large pile of law books & precidents to show that Egan was justified in his act.” Phelps’s argument went through the end of the first day so the trial was continued to October 18, 1851, a Saturday. 46
George A. Smith then stole the show and swayed the jury. 47 Smith admitted he was a “new member of the bar” who was arguing his first case. He stated he would not refer the jury “to authorities on legal points” but would “simply talk the common mountain English, without reference to anything technical.” He expressed a view commonly held in early Utah by stating that he could tell the jury was interested in “looking for justice instead of some dark, sly, or technical course” by which the jury might be prejudiced. His arguments constitute an extremely important piece of oratory because they display some of the sentiments of Mormon Utah society (and the views of LDS church leaders) at the time. Smith conceded that the English common law had been enacted to some extent in Utah by the Territorial Organic Act. Nonetheless, he asserted that “if a law is to be in force upon us, it must be plain and simple to the understanding, and applicable to our situation.” 48
Smith was outraged that seduction in England gave rise only to a civil suit for damages. He argued that “in this territory it is a principle of mountain common law, that no man can seduce the wife of another without endangering his own life.” Rephrasing what he had just said, he continued: “The principle, the only one, that beats and throbs through the heart of the entire inhabitants of this territory, is simply this: The man who seduces his neighbor’s wife must die, and her nearest relative must kill him!” 49 Smith then included a metaphor used for decades after: if a wolf, dog, or hyena invades your flock of sheep, you kill the offending predator. If a man invades your home and preys on your wife or daughter, you do the same thing. The apostle-defense lawyer then attempted to show that such a principle had numerous adherents in other parts of the country by referring to several obscure American cases in which killers of seducers had been acquitted. He reiterated his position on “mountain common law” several times and concluded by stating, for the same procedural reasons that Blair had argued that the killing had been committed in unorganized territory, that Egan had killed Monroe within the confines of Utah Territory, where Utah society should have a say in what was punished. 50
George A. Smith. Utah State Historical Society, photograph no. 13567.
Following the lawyers’ closing arguments, Judge Snow addressed the jury. He reviewed the law pertaining to murder, rejecting Smith’s argument that killing a seducer was mountain justice that could be formally countenanced: “Though the deceased may have seduced the defendant’s wife, as he now alleges, still he had no right to take the remedy into his own hands.” It mattered not at all that Egan believed “he killed Monroe in the name of the Lord.” If he had hunted down Monroe and killed him, it was murder. 51
Turning to the procedural question of jurisdiction, which he found to be “the most difficult part of the case,” Snow explained that the territorial courts held “a mixed jurisdiction.” The court could sit either as a federal court or a territorial court, but not at the same time. It was presently sitting as a United States court; it would thus look to federal statutes “for our authority of law.” Sitting as a federal court the tribunal had no jurisdiction over crimes committed within Utah Territory. Because the United States had criminal jurisdiction only in cases “said to be national in their character” or in which the alleged crime occurred in an area where the federal government had “sole and exclusive jurisdiction,” as in unorganized territory, the place where Monroe was killed was dispositive. According to Snow’s charge, if the jury found that the act was committed within the territory of Utah, where the federal government did not have sole and exclusive jurisdiction, the verdict would have to be not guilty irrespective of the substantive merits of the case because of the court’s lack of jurisdiction. 52
Following Snow’s charge to the jury, the jurors left the courtroom to deliberate. Twenty minutes later they returned a verdict of “not guilty,” as announced by the jury foreman, Daniel H. Wells. 53 The jury did not explain its verdict— whether it turned on the esoteric jurisdictional issue or, far more likely, that the jury disregarded the judge’s instructions regarding applicable law and instead determined that the homicide of James Monroe was justified under George A. Smith’s mountain common law. The subsequent cases of juries finding men who killed “seducers” of their wives and daughters not guilty clearly adopted Smith’s mountain common law analysis.
An interesting point involved in the case is that James Monroe certainly did not commit criminal seduction or even actionable civil seduction; that is, no criminal action against him could have been brought, and Tamson Egan (or her husband) would not have had a civil cause of action against Monroe. This is so for several reasons. Seduction is always a difficult thing to prove, and under almost all criminal seduction statutes, including the one enacted by the Utah Territorial Legislature in 1852 after the killing of Monroe, the woman seduced must be unmarried and of a previously chaste nature. 54 Furthermore, as already stated, Tamson Egan had evidently not been an unwilling party to the sexual relationship with Monroe.
Surprisingly, not only non-Mormons, who saw the Egan case as a further manifestation of extralegal Mormon “justice,” but also Latter-day Saints publicized the case. 55 Smith’s closing statement in the case was published in full by the Deseret News shortly after it was delivered and was published in pamphlet form at least twice by Mormons in England in 1852. 56 In his three letters to the editor of the New York Herald, Jedediah Grant defended Howard Egan and Madison Hambleton in the killings of their wives’ “seducers.” 57 This seems puzzling in light of rumors of “Danites” and other supposed extralegal Mormon groups that the American press seized upon and accused of dastardly deeds. Two questions thus arise from the Egan case (and similar cases that followed as well). Why would the Mormons countenance the extralegal “execution” of Monroe and others in similar circumstances and, even more surprising, why would they publicize the radical views and statements of Smith in the Egan trial?
Definitive answers to both questions are elusive, but the historical record and legal theory provide some helpful hints. First, Mormons were not unanimous in their opinion of the case, and some were privately troubled about the precedent it would set. Monroe’s prominent LDS family members must have been very concerned. Mormon lawyer Hosea Stout confided to his diary his worry that the case might prove to be a very dangerous “precident for any one who has his wife, sister, or daughter seduced to take the law into his own hands and slay the seducer.” 58
The criminal legal theory of Herbert L. Packer aids the modern observer in gaining some theoretical understanding of the sentiments of many early Utahns who seem to have had few qualms about the outcome of the case. Rather than approaching the question of justice from a legal-extralegal standpoint, Packer has formulated two models of criminal process. These he calls the “Due Process Model,” which he perceives as placing emphasis on a legal system of courts and law enforcement and which sometimes has a rival in what he calls the “Control of Crime Model,” which emphasizes repression of crime, either through legal or extralegal measures. 59
Applying these models to the Egan case, it becomes evident that Zerubbabel Snow’s instructions to the jury incorporated the importance of due process. One simply could not justifiably take the law into his own hands and kill another in the circumstances in which Howard Egan killed James Monroe or in which Madison Hambleton killed Dr. Vaughn. Taken further, Snow probably believed that if Utah society felt that the punishment assigned to a crime was not commensurate with the severity of the crime, it should alter the statutory punishment through normal legislative processes. 60
On the other hand, it is also evident that many of the Mormons in early Utah, following Smith’s logic, believed that the punishment accorded to a conviction of seduction was not equal to the seriousness of the crime and that it was also insufficient to control the crime of seduction. A criminal seduction statute, enacted by the Utah Legislature in 1852, called for a minimum prison term of one year and maximum sentence of twenty years for the crime and also allowed for a minimum fine of $100 and a maximum fine of $1,000. 61 Most Utahns evidently did not believe such a punishment was sufficient to control seduction of women in the territory, especially in circumstances such as Monroe’s “seduction” of Mrs. Egan where no punishment would have been available under the statute or the common law. According to this view, a home had perhaps been ruined by the sexual relationship between Monroe and Tamson Egan and yet the law offered no remedy (or scapegoat) at the time other than an adultery charge against both parties.
Even more perplexing than the question of why Mormon Utah countenanced Egan’s killing of Monroe is the question of why the case was so widely publicized by the Mormons in 1851 and 1852. The answer seems to be at least twofold. On the local front, outsiders were made aware of the opinion Latter-day Saints had of seducers. An editorial afterword to the Deseret News transcript of Smith’s famous closing statement noted that the case should “prove a sufficient warning to all unchaste reprobates, that they are not wanted in our community.” 62 Relative to the world outside of Utah, the answer seems to lie in the fact that widespread reports of Mormon immorality both preceded and followed the public announcement of plural marriage in 1852. Publication of the Egan case beyond Utah’s borders was partially in response to these reports. It served to advertise the church’s position that, while others condoned extramarital sexual relations, Mormons limited their sexual relationships to the marriage state, albeit one man could have several wives.
James Monroe’s grave, located at the Salt Lake Cemetery. Monroe’s headstone lists October 20, 1851, as his death date: exactly one month after he actually died and just two days after Howard Egan was found not guilty on murder charges. Courtesy of the author.
As noted earlier, some Mormons such as Stout were concerned that the Egan case might set a dangerous precedent. An extensive search of newspapers between the time of the Egan trial in 1851 and the late 1860s failed to reveal any similar cases, indicating that Stout’s fears may have been exaggerated. In the late 1860s and early 1870s, however, several cases arose with factual circumstances similar to those found in the Egan case, and the term “mountain common law” once again found its way into local newspapers. 63 The cases and the editorial comment that accompanied them attest to the continued support for these extralegal measures, at least among Latter-day Saints, who still predominated numerically in the territory.
The first extralegal punishment of a seducer from this period that found its way into the press by Utah newspapers came in 1868. William Hughes’s daughter was working in a restaurant in Salt Lake City. The proprietor of the restaurant, a man named Campbell, reportedly seduced Hughes’s daughter by promising to marry her. Hughes learned of his daughter’s seduction and contacted the local police. A policeman accompanied Hughes to Campbell’s residence, and there they found Campbell and the daughter in bed together. Campbell asserted that the two were married, but it was soon established that they were not and he was arrested on a charge of seduction. The next morning a preliminary examination was held. The evidence convinced Hughes that his daughter had in fact been seduced. According to the newspaper account he “looked upon his child as she stood there the victim of a scoundrel’s lust, and saw all the bright future that had been before her, forever darkened by the villain’s hellish arts, and in his roused indignation he drew a revolver and shot him down in the court room.” Hughes was, of course, arrested for shooting Campbell. Campbell was severely wounded, but, the Deseret News reported, the wound was “not necessarily fatal.” However, the report continued, “The prevailing feeling is that it is a pity the shot did not do its work as effectually as it could be done.” The News article continued by presenting the first of a series of editorial comments:
Hughes was tried for assault with intent to kill and found not guilty. 65 None of the hoopla that surrounded Campbell’s preliminary hearing was evident in the publicity given to the Hughes trial. A brief line in the locals column of the Deseret News was all that publicly announced the verdict. The acquittal of Hughes and the editorial comments of the News both indicate that the sentiment first expressed by George A. Smith in the Egan case had continued and had become perhaps embedded as a common social belief.
More editorial comment came a few weeks later, following another incident of a father finding a man trying to seduce his daughter. The News, which reported this latest incident on February 25, 1868, advised the “oily tongued scoundrel,” who had escaped the father by running away, to “keep running, lest he should run against a bullet.” It then published a long lead editorial on the “inviolability of virtue.” The editorial, almost certainly authored by editor and church leader George Q. Cannon, supported the view that the homicides and shootings of seducers were publicized to counter charges of immorality among the Latter-day Saints: “Because we believe in and practice polygamy, there are many people, who, for the want of correct information, imagine that we are licentious and corrupt, and think of nothing but the gratification of passion. All the pulpit eloquence which finds vent against us, has this view of our character for its basis.” However, Cannon countered, “It is time that the world should know what we have been endeavoring to impress upon it for years, that the people of this Territory are determined, by every means in their power, to check vice and foster virtue.” The editor-apostle then reaffirmed the “unwritten law”:
Apparently no seducers were shot during 1869, but a related brand of extralegal violence was carried out and editorially condoned. As he was being escorted to prison, a man convicted of rape and sentenced to fifteen years in the territorial penitentiary was shot five times and killed by the husband of the woman he raped. Here was a clear case of a husband who did not believe that the law had provided a sufficient punishment for a crime. The local probate jury agreed because the killer of the rapist was given a verdict of not guilty on a murder charge, with the jury classifying his act as justifiable homicide. 67
In 1871 at least two men were killed by relatives of the women they seduced. Editorial comment on the incidents indicates that, while not recorded in a statute book, certain procedures were to be followed in carrying out the responsibilities of “mountain common law.” Richard Brown, a Provo resident, was killed. Henry Davis was accused of committing the murder. During Davis’s murder trial, John J. Baum rose in the courtroom and admitted killing Brown, defending his action on the ground that Brown had seduced his (Baum’s) niece after promising to marry her. Davis was immediately acquitted and it soon became clear that public sentiment condoned Baum’s act. 68 The only reservations people had, according to the Salt Lake Herald, were that Brown had been killed during the night and that Baum had not openly admitted committing the act earlier:
Thus, if Baum had confronted and killed Brown in the light of day, there would have been no question that he should have been acquitted. Nevertheless, having killed Brown at night and delayed turning himself in, Baum was still acquitted. 69
Appearing in a Herald editorial that both condemned and condoned Baum’s act was a comment generally opposing extralegal measures, except when formal legal processes did not provide a sufficient remedy:
The Salt Lake Tribune emphatically raised its journalistic voice against the extralegal punishment of seducers. It is difficult to gauge just how genuine the paper’s criticism of the practice was, however, because the Tribune opposed practically anything the News and the Herald (sometimes referred to as “Zion’s echo”) supported and was especially interested in publicizing anything that might put the LDS church in an unfavorable light. With these considerations in mind, the comments of the Tribune still offer some insights:
Still another seducer was killed in September 1871, in Hooper, Utah. James Hendry had “shown attention” to James Hale’s daughter, who was married but estranged from her husband and living with her parents. Hale told Hendry to stay away from his daughter. Hendry, however, secured work for the daughter away from home and then seduced her. When Hale and his son Ezra learned of the seduction, they killed Hendry with two blasts from a shotgun and several rounds from a pistol. The Hales were arrested but escaped. 72 The Ogden Junction, a Mormon paper edited by future LDS leader Charles Penrose, and the Deseret News agreed that “the universal feeling among the community is that Hendry richly deserved his fate. Death to the seducer is mountain law, let libertines understand it and govern themselves accordingly.” 73
After 1874 major criminal actions were taken from the jurisdiction of the local probate courts in Utah, primarily to facilitate enforcement of the anti-polygamy statutes. This had the effect of removing cases involving extralegal punishment of seducers from these local, Mormon-controlled courts. 74 Utahns found another way to relieve punishers of seducers from criminal liability, however, in at least one case in 1877.
When William Hobbs shot Con Sullivan on June 25, 1877, on the Eagle Emporium corner in Salt Lake City, all three of the major Salt Lake City newspapers had an opportunity once again to air their opinions on the question of the extralegal punishment of seducers. Hobbs, who ran a boarding house in West Jordan, suspected that his fifteen-year-old daughter and a local saloon keeper, Con Sullivan, were engaged in an illicit relationship. According to the account Hobbs gave to a Herald reporter, one Sunday night he had ordered his daughter to stay home. While he stepped out for a moment, his daughter stole away. Hobbs reported that he went to the residence of Sullivan and knocked on the door but received no answer. He then returned home and fetched an implement to break his way into the house. He did so and found Sullivan and his young daughter “flagrante delicto.” He returned home, this time for a weapon, but by the time he again reached Sullivan’s house, the couple had fled. 75
Hobbs hunted all night for the two. On the following day, June 25, he heard that they were in Salt Lake City. He took the train into the city and found them near the Eagle Emporium corner. When Sullivan saw Hobbs he began to run. Hobbs fired four shots at the fleeing man and hit him with two. The wounded Sullivan was taken to the Townsend House and later to St. Mark’s Hospital. All three newspapers carried rather extensive coverage of the sensational shooting. The Deseret News avoided much of the editorial comment that it had made in earlier cases. The position of the paper was given implicitly, however, in its description of Hobbs’s attempt to “annihilate the destroyer of the virtue of his daughter.” The Salt Lake Herald maintained its earlier position by calling the shooting one of “genuine merit,” and headlining the article covering the incident with “The Seducer’s Portion.” 76 Neither the official LDS paper nor the morning paper owned and operated by Latter-day Saints engaged in the radical editorial rhetoric of the early 1870s, however. The greatest amount of editorial comment this time came from the Tribune.
The Tribune was much more willing to let a legal tribunal determine whether or not there had been a criminally intimate relationship between the young girl and the saloon keeper. The precedent of the Egan case hung heavily over the present situation: “We think we see a manifest determination on the part of the priests to acquit Hobbs on the ground of the alleged seduction.” Such a proceeding would be based on the “mountain common law,” as laid down by George A. Smith, in his plea for Howard Egan who murdered James Monroe for the offense of seduction. The article continued by stating that Smith’s “great speech . . . contains more blood and thunder than any other sermon in the Journal of Discourses.” It accused the “Mountain Meadows press” of promoting the acquittal of Hobbs “by endeavoring to create public sympathy in favor of Hobbs, regardless of the bottom facts of the case.” Finally, the Tribune article stated that the only fact established in the case so far was that a deliberate attempt had been made upon the life of one man by another. 77
Hobbs was examined by a local police court over which Alexander Pyper presided. The Herald simply reported that Hobbs had been discharged because “Justice” Pyper had held “that the shooting was justifiable.” 78 The Tribune took a less dispassionate approach in a front page volley. The paper once again criticized “the late George A. Smith’s ‘Mountain law,’” and “Bishop” Pyper’s decision, stating that, “The progress made by the world during three thousand years in restraining the untamed passions of man, and subordinating all to the impartial decrees of the law, by the divinely-inspired legislation of this modern Israel is set aside.” 79 Even though criminal jurisdiction had been removed from local probate courts by the Poland Act in 1874, Mormon sentiments still won out in the Salt Lake City police court.
It is evident that the Egan case set the precedent followed in these later cases. While the term “mountain common law” probably did not originate with George A. Smith, he certainly popularized the term and gave it significance in pioneer Utah. The term symbolized something that was apparently representative of more general sentiments around Utah and became almost a watchword among many Mormons.
The reliance that Judge Snow placed on due process was waylaid, at least with punishers of seducers in the local probate courts where all these murder charges, except the one against Hobbs, were brought. No case of a man being convicted in Utah of extralegally punishing a relative’s seducer or rapist has been found during the years between 1851 and 1877. Part of the enduring reluctance to condemn a man who killed or attempted to kill the seducer of his wife or daughter may have been that three men who were or eventually became members of the LDS church’s First Presidency, Brigham Young, George A. Smith, and Daniel H. Wells, had played key roles of defense counsel or jury foreman in the precedent-setting Hambleton and Egan cases in 1851.
Not all cases of seduction ended in the extralegal punishment of the seducer, however. For example, under the law of Utah Territory, marriage of the seducer and the woman seduced barred criminal action against the seducer. In 1873 a woman accused a man named Pape of seduction and an action was about to be brought against him by the police when the two were married in the police station by Justice Clinton. The Tribune sarcastically editorialized that “matters of that kind can be ‘made square all ‘round’ by tying the hymenial knot ‘if the female is of a ‘previous [sic] chaste character.’” The charge was dropped, and it is clear that the man assumed “the better part of valor” in the case. 80
In 1888, Chief Justice Charles Zane of the Utah Supreme Court rendered an opinion in a case similar to those described above. Wilford H. Halliday had killed a man named Reeves twenty-four hours after learning that Reeves had committed adultery with Halliday’s wife. Halliday argued that he had killed Reeves “in a sudden heat of passion” after learning of his wife’s “defilement.” The trial court and the higher Utah court rejected the argument: “The law will not permit the husband to say that he slew the defiler in a sudden heat of passion after deliberating upon the defilement 24 hours. . . . The law is that if the husband after learning of the defilement of his wife waits and deliberates, and then kills the defiler, in so doing he commits the crime of murder.” 81
Most of nineteenth-century Mormon society in Utah appears to have condoned the extralegal punishment of seducers with the punishment to be meted out by the seduced woman’s relative. Utahns believed they were not alone in supporting this practice. For example, in editorializing on the Baum case in Provo, the Salt Lake Herald stated that the “unwritten law” of killing seducers was “recognized everywhere throughout this great Republic.” 82 Writing in the twentieth century, the Latter-day Saint historian and leader B. H. Roberts agreed with this view. Roberts stated that there were cases
Obviously, Roberts believed that it was a tribute to the Mormon community that such men were willing to punish seducers. His words might be interpreted to refer primarily to cases involving the slaying of rapists, except that the reference he gives is to the Egan case. 83
There are indications that similar extralegal acts were countenanced in other parts of the country. One extralegal homicide of a “seducer” brought great sadness to Mormon Utah in 1856. This was the death of the LDS apostle Parley P. Pratt, who had married Eleanor Mc- Lean. Since Mrs. McLean had not obtained a divorce from her first husband, Mr. McLean viewed Pratt’s plural marriage to his wife as no marriage at all. He hunted for Pratt throughout the eastern United States until he found him in Arkansas and killed him. McLean escaped and never faced trial. 84 Under the tenets of the “mountain common law,” McLean had simply done that which the law probably would not do, and his act was condoned by many.
Although the two cases cited by George A. Smith in his arguments before the jury have not been located, it is very possible that they did involve the acquittal of killers of seducers. 85 There were other instances as well. In the same issue of the Salt Lake Herald that the Baum case was discussed, an account of a homicide of a seducer in San Francisco was published. Citizens of San Francisco reportedly approved the act. 86
Even as late as 1906, an American Bar Association report prepared by the prominent Louisiana attorney Thomas J. Kernan asserted that a number of extralegal acts were countenanced by the public. Two of these were the killing of an adulterous man by the wronged husband and the slaying of a seducer of a virgin. 87
Almost contemporaneous with Kernan’s report was one of the most famous murder trials of the twentieth century. Harry K. Thaw, heir to a large fortune and playboy husband of Evelyn Nesbitt, a famous stage actress, killed Stanford White on the roof of the Madison Square Garden in New York City, a building that White had designed. The reason Thaw gave for the killing was that White had continued to approach Nesbitt after she married Thaw, hoping to continue a sexual liaison they had had before she married. Thaw relied on the “unwritten law”— or what he called “Dementia Americana”—that held that such a man deserved death. Thaw fought the murder charges in his first trial on the merits, feeling that “White was a villain who had met his just desserts” and that “on such an issue no jury in the world would ever convict me.” 88
Placing the Utah experience into historical perspective, it is evident that it was in some ways similar to the experience of other parts of the country. Though by no means universally approved of in nineteenth-century America, extralegal violence was clearly condoned by many Americans, especially those living in the southern and western parts of the country. In fact, the scale of extralegal measures is quite staggering to the modern mind. Vigilantes and supporters of vigilante movements included presidents Andrew Jackson and Theodore Roosevelt, senators, congressmen, governors, literary luminaries, legal scholars, prominent lawyers, and businessmen, as well as representatives from practically every class of American society. 89 It is from this perspective that the relatively few instances of extralegal violence in early Utah must be viewed.
While Herbert Packer’s theory goes far in helping the modern observer understand why many supported extralegal justice measures in the United States, and while it certainly applies to the Utah experience as well as the broader experience, there were subtly different reasons in Utah for society allowing men to kill their relatives’ seducers. Most vigilantes were intent primarily on bringing order to society and on controlling crime. The Latter-day Saints were certainly interested in controlling seduction and publicized these cases partly for that reason, but they also used the cases for propaganda purposes. They hoped by publicizing the Egan case and similar cases that followed to indicate to the country and world that they were not lax in morals. Although their controversial practice of plural marriage shocked and outraged nineteenth-century America, the Mormons wanted to show that they believed in the sanctity of sexual morality to the point of condoning lethal extralegal punishment against men who “seduced” women into violating that morality. One suspects that the country might not have been convinced that Latter-day Saints were tough on sexual sin simply because they condoned killing seducers when they were also married to multiple women. 90
Notes
1. Kenneth L. Cannon II is an attorney in private practice and an independent historian in Salt Lake City. The original version of this article was published in Utah Historical Quarterly in the Fall 1983 issue and was the recipient of the Dale Morgan Award for Best Scholarly Article in the quarterly published that year. Cannon has retained the overall structure of the original but has updated it with more archival materials and recently published secondary sources.
2. W. Eugene Hollon, Frontier Violence: Another Look (New York: Oxford University Press, 1974); Wayne Gard, Frontier Justice (Norman: University of Oklahoma Press, 1949); Richard Maxwell Brown, “Historical Patterns of Violence in America,” in Hugh Davis Graham and Ted Robert Gurr, eds., The History of Violence in America: Historical and Comparative Perspectives (New York: Bantam Books, 1969), 45–83, and “Legal and Behavioral Perspectives on American Vigilantism,” in Donald Fleming and Bernard Bailyn, eds., Law in American History (Boston: Little, Brown, 1971), 95–144.
3. “Vigilance Committees” Deseret News, January 22, 1868, 3.
4. Larry R. Gerlach. “Ogden’s ‘Horrible Tragedy’: The Lynching of George Segal,” Utah Historical Quarterly 49 (1981): 157. Gerlach has found evidence of at least twelve lynchings in Utah.
5. Kenneth L. Cannon II, “‘Mountain Common Law’: The Extralegal Punishment of Seducers in Early Utah,” Utah Historical Quarterly 51 (1983): 308–327. The original version of this article has since been cited by a number of legal opinions and law review articles. See, for example, Oliverson v. West Valley City, 875 F.Supp. 1465, 1474 (D. Utah 1994); Paul G. Cassell, “The Mysterious Creation of Search and Seizure Exclusionary Rules under State Constitutions: The Utah Example,” Utah Law Review (1993): 751, 813; Lea VanderVelde, “The Legal Ways of Seduction,” Stanford Law Review 48 (1996): 817, 834; Nathan B. Oman, “Preaching to the Court House and Judging in the Temple,” B.Y.U. Law Review (2009): 157, 206.
6. Ronald W. Walker, “The Affair of the ‘Runaways’: Utah’s First Encounter with the Federal Officers,” Journal of Mormon History 39 (Fall 2013): 1–43; Ronald W. Walker and Matthew J. Grow, “The People Are ‘Hogaffed or Humbugged’: The 1851–52 National Reaction to Utah’s ‘Runaway Officers,’” Journal of Mormon History 40 (Winter 2014): 1–52.
7. “Report of Messrs. Brandebury, Brocchus, and Harris, to the President of the United States,” Washington, D.C., December 19, 1851, in Report from the Secretary of State, appendix to the Congressional Globe, House of Representatives, 32nd Congress, 1st Sess., 87–88. The runaway officials left Great Salt Lake City on September 28, 1851, just a few days after Howard Egan killed James Madison Monroe, and they might have passed the wagon train that Monroe had been a part of along the trail. Journal History of the Church of Jesus Christ of Latter-day Saints, September 28, 1851, LDS Church History Library, Salt Lake City, Utah (hereafter, CHL).
8. Journal of Azariah Smith, as quoted in Brigham D. Madsen, ed., A Forty-niner in Utah, With the Stansbury Exploration of Great Salt Lake: Letters and Journal of John Hudson, 1848–1850 (Salt Lake City: Tanner Trust Fund, University of Utah Library, 1981), 108.
9. Jedediah M. Grant, Three Letters to the New York Herald, from J. M. Grant, of Utah (New York, n.p., 1852), 42– 43, available online at lib.byu.edu/collections/mormon -publications-19th-20th-centuries, accessed August 10, 2020; Smith Journal, 108. Grant wrote the letters largely in response to the runaway officials’ report of conditions in Utah Territory. Hambleton may have been a polygamist at the time of the killing and certainly was after. It is most likely that it was his first (and in 1851, perhaps only) wife, Chelnecha, who had the extramarital affair with Vaughn. Family Group Records of Madison D. Hambleton and Chelnecha Smith, accessed April 2020, familysearch.org.
10. Grant, Three Letters, 42–43; Smith Journal, 108.
11. Journal of Azariah Smith as quoted in Madsen, ed., A Forty-Niner in Utah, 108. Smith also noted that, when Mrs. Hambleton was “haled before the local congregation to answer charges of adultery,” she refused to ask for forgiveness and was “cut off from the Church.” Smith Journal, 108. Madison and Chelnecha Hambleton had no children together after Hambleton killed Vaughn. Family Group Records of Madison D. Hambleton and Chelnecha Smith, accessed April 2020, familysearch.org.
12. Madsen, ed., A Forty-niner in Utah, 107–109. Vaughn had apparently had another illicit affair earlier in Great Salt Lake City. He had been indicted in September 1850 for adultery with Timothy B. Foot’s wife, and Hosea Stout had filed a civil action on behalf of Foot for damages against Vaughn. Juanita Brooks, ed., On the Mormon Frontier: The Diary of Hosea Stout, 1844–1861, 2 vols. (Salt Lake City: University of Utah Press and Utah State Historical Society, 1964), 2:280–81. Some residents of the capital city believed Vaughn had been lucky not to have been shot on that occasion. Madsen, ed., A Forty-niner in Utah, 107.
13. Brooks, ed., On the Mormon Frontier, 2:393, 396.
14. William D. Hartley, Faithful and Fearless: Major Howard Egan, Early Mormonism, and the Pioneering of the American West (Holladay, UT: Howard Egan Biography, LLC, 2017).
15. Brooks, ed., On the Mormon Frontier, 2:653; D. Michael Quinn, The Mormon Hierarchy: Extensions of Power (Salt Lake City: Signature Books, 1997), 242.
16. Grant, Three Letters, 43. Although Grant referred to Howard Egan’s “wife,” he never named Tamson. Other nineteenth-century historical works dealing with the case also do not list which of Egan’s wives was the subject of Monroe’s “seduction.” See Orson F. Whitney, The History of Utah, 4 vols. (Salt Lake City: George Q. Cannon and Sons, 1892–1904), 1:480–82, and B. H. Roberts, A Comprehensive History of the Church of Jesus Christ of Latter-day Saints, Century One, 6 vols. (Salt Lake City: Deseret News Press, 1930), 4:135–36. Many sources, including an order issued by Judge Zerubbabel Snow in the proceedings of United States v. Egan, make clear that it was Tamson, Egan’s first wife. United States v. Howard Egan, Order of Hon. Z. Snow, October 16, 1851, box 1, fd. 9, 62, Series 25011, Utah State Archives and Records Service, Salt Lake City, Utah (hereafter, USARS). Interestingly, Jedediah M. Grant did not describe Tamson’s relationship with Monroe as the result of “seduction”; he described her as “unfaithful” and described Monroe as her “paramour.” On the other hand, Grant also argued that adultery should be punishable by death, leaving the question open whether some might have condoned the killing of Tamson Egan as well as Monroe. As Grant made clear, however, Howard Egan’s love for Tamson “partook of the nature of sinful adoration,” which no doubt made his anger at and sense of betrayal with his friend James Monroe stronger. Egan was not willing to consider killing Tamson or having someone kill her. Grant, Three Letters, 43, 47.
17. James M. Monroe, Diary, August 22, 1842, April 22, 27, 1843, microfilm copy of holograph, MS 7061, CHL. The original of the diary is in the Howard Egan Papers, Beineke Library, Yale University, New Haven, Connecticut.
18. Grant, Three Letters, 43. Edward Hogan, “The Curious Case of James Madison Monroe,” Sunstone, September 6, 2013.
19. James Madison Monroe to Brigham Young, September 16, 1851, box 69, fd. 4, Brigham Young Office Files, 1832–1878, CR 1234/1, CHL. Hartley believes Monroe wrote the letter while at Fort Bridger. Hartley, Faithful and Fearless, 259. This extraordinary epistle, written just a few days before Egan and Monroe met near the border between Utah Territory and unorganized United States territory, provides an inside view of a man who expects to be killed imminently unless the Mormon prophet intervenes. Monroe was contrite in his letter to Brigham Young, acknowledging that he had “transgressed . . . I have sinned against the Lord and against the Church. I throw myself entirely on your mercy.” This was not, however, the confession of a “seducer”; it was the confession of a religious man, who had committed the sin of adultery, to his ultimate spiritual leader. In the letter, Monroe recounted how he and Tamson Egan became acquainted in Nauvoo and how she initiated the physical relationship between them. He described how, on a walk in Nauvoo, she “took hold of my hand and placed it immediately over the most secret part of her body without saying a word.” Later, in Utah, “she never resented any familiarities I took with her, and suffered me to put my hand in her bosom, to kiss her, and even put my hand under her clothes. It was not flesh and blood to stand that, at least, not in mine.” Monroe was expressing his human frailty to Young in the hope that the church leader would “sympathize with the frailties of human nature. You are aware, doubtless, that it is very difficult to resist the advances of a beautiful woman. ‘When a pretty woman shows her foot, what can a poor man do?’” Ibid.
20. Journal History, December 1, 1850; Hartley, Faithful and Fearless, 254–56; James Madison Monroe to J. F. Carter, February 9, 1851, and Monroe to Carter, June 1, 1851, Letters to Wilford Woodruff, 1851, MS 1352, CHL.
21. According to George A. Smith’s recounting of Horner’s testimony in Egan’s trial, Horner had learned that Tamson Egan had borne an illegitimate child and that it was widely known that Monroe was the father. “Indictment for Murder, Plea of George A. Smith, Esq.” Deseret News, November 15, 1851, 3.
22. Monroe to Young, September 16, 1851. This is consistent with Young’s representation of Madison Hambledon in the Vaughn murder case.
23. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
24. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3; Grant, Three Letters, 43–44. Grant had left for New York on September 24, 1851, just before the runaway officials had embarked on their return to Washington, D.C., and he likely also passed Monroe’s wagon train. Howard Egan had returned to Great Salt Lake City on September 21, the day after he killed Monroe, and it is likely that Grant talked to Egan during the intervening few days. Journal History, September 21, 24, 1851.
25. Grant, Three Letters, 43–44. The indictment against Egan for murder provides the detail that the killing took place on September 20, 1851. U.S. v. Egan, Case Murder, A true bill signed by Daniel Spencer, grand jury foreman, October 16, 1851, box 1, fd. 9, 125–27, Series 25011, USARS.
26. U.S. v. Egan, A true bill, October 16, 1851, 125–27, US- ARS. The witnesses who testified before the grand jury were G. C. Robbins, William Horner, James Wade, and George M. Moore.
27. [Woodward, William], Reminiscences, 8–10, box 2, fd. 4, in William Woodward, Collection 1851–1919, available online at Pioneer Database, 1847–1868, s.v. “William Woodward,” 1851 John Reese Wagon Train, accessed July 23, 2020, history.churchofjesuschrist.org/overland travel/.
28. Brooks, ed., On the Mormon Frontier, 2:407–408 (Hosea Stout); Orson Hyde, “Shot,” Frontier Guardian (Kanesville, IA), November 14, 1851; Alexander Neibaur, Journal, September 21, 181, excerpted in Journal History, September 21, 1851; “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
29. Journal History, October 3, 1851.
30. U.S. v. Egan, A true bill, October 16, 1851, 125–27, US- ARS.
31. U.S. v. Egan, warrant for arrest of Howard Egan, October 13, 1851, return of service by J. L. Heywood and H. S. Eldredge, October 14, 1857, 99–100, box 1, fd. 9, Series 25011, USARS.
32. U.S. v. Egan, minutes of court proceedings, First District Court, October 14, 1851, reel 1, 7, Series 10035, US- ARS.
33. U.S. v. Egan, Order of Hon. Z. Snow, October 14, 1851, 105, USARS. The jury pool of thirty-six men summoned by Marshall Joseph Heywood included LDS leaders Daniel H. Wells, Reynolds Cahoon, and William Clayton; future handcart company captain Edward Martin; Salt Lake Temple architect Truman O. Angel; missionary, lawyer, actor, and Nauvoo Legion general James Ferguson; and heroic sheriff Rodney Badger. It was clearly not a random sampling of Great Salt Lake City men. U.S. v. Egan, list of jury pool, box 1, fd. 9, 106–107, Series 25011, USARS.
34. Journal History, October 17, 1921; Whitney, History of Utah, 1:481.
35. Andrew Jenson, Latter-day Saint Biographical Encyclopedia, 4 vols. (Salt Lake City: Andrew Jenson History Company, 1888–1936), 1:37–42, 3:692–97.
36. U.S. v. Egan, Order of Hon. Z. Snow, October 16, 1851, 62, USARS.
37. U.S. v. Egan, Order of Hon. Z. Snow, October 16, 1851, 62, USARS.
38. U.S. v. Egan, Order of Hon. Z. Snow, October 16, 1851, 62, USARS. William Snow filed a return of service certifying he had “duly complied” with the court’s order, suggesting that had received Tamson Egan’s answers and recorded them. U.S. v. Egan, certificate of service by William Snow, Esq. regarding compliance with the court’s order, October 16, 1851, box 1, fd. 9, 63, Series 25011, USARS.
39. “History of The District of Utah’s U.S. Attorney’s Office,” United States Department of Justice, accessed January 2020, justice.gov/usao-ut/history#blair.
40. U.S. v Egan, minutes of trial, First District Court, October 17, 1851, reel 1, 1–12, series 10035, USARS; Quinn, Mormon Hierarchy, 710–12.
41. U.S. v. Egan, minutes of trial, October 17, 1851, 12, US- ARS; “Indictment for Murder, Plea of George A. Smith, Esq.,” 3; Brooks, ed., On the Mormon Frontier, 2:407; Hartley, Faithful and Fearless, 268.
42. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
43. U.S. v. Egan, minutes of trial, October 17, 1851, 12, US- ARS; Hartley, Faithful and Fearless, 266.
44. Judge Snow’s use of the words seduced and seduction in his questions was prejudicial to the prosecution and perhaps, on reflection, he let Tamson Egan’s answers remain under seal.
45. Hosea Stout provided a short account of the trial, and George A. Smith made references to Blair’s arguments in his own closing statements. Brooks, ed., On the Mormon Frontier, 2:407; “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
46. U.S. v. Egan, minutes of trial, October 17, 1851, 12, US- ARS; Brooks, ed., On the Mormon Frontier, 2:407–408.
47. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3; Whitney, History of Utah, 1:481; Clair T. Kilts, “A History of the Federal and Territorial Court Conflicts in Utah, 1851–1874” (master’s thesis, Brigham Young University, 1959), 50. The most readily available copy of George A. Smith’s argument to the jury is found in the Journal of Discourses, 26 vols. (London: Latter-day Saints’ Book Depot, 1854–1886), 1:95–100. The report of Snow’s charge to the jury is also in the Journal of Discourses, 1:100–103. Smith’s closing argument to the jury is the only courtroom legal argument included in the Journal of Discourses and Zerubbabel Snow’s charge to the jury is also unique in the Journal of Discourses.
48. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3; Journal of Discourses, 1:95–96. On early Mormon attitudes critical of lawyers and the formal legal system in the United States, see James H. Backman, “Attitudes within the Church toward the Study of Law, Lawyers, and Litigation—The Brigham Young Era Compared to the Present,” BYU Education Week Lectures on the History of Mormon Lawyers ([Provo]: [Brigham Young University Education Week], [1980]).
49. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3; Journal of Discourses, 1:97.
50. As noted below, this question goes to whether the court had jurisdiction to enter any verdict, not whether the defendant should be found not guilty if the court did not have jurisdiction.
51. “Indictment for Murder, Judge Snow’s Charge to the Jury,” Deseret Evening News, November 15, 1851, 3; Journal of Discourses, 1:101.
52. “Indictment for Murder, Judge Snow’s Charge to the Jury,” 3; Journal of Discourses, 1:102. Judge Snow’s instruction that the jury must find Egan not guilty if the act took place in Utah is almost certainly wrong. Instead, Snow would not have had the authority to render any verdict and would have needed to dismiss the case. The prosecution, if it chose to do so, could then have brought the case against Monroe in a court that had jurisdiction to decide the case.
53. U.S. v. Egan, Minutes of trial, October 18, 1851, 13, US- ARS. The Deseret News capitalized the words “not guilty,” while the Journal of Discourses did not include the verdict at all. Journal of Discourses, 1:103.
54. “An Act in Relation to Crimes and Punishments,” Title II, section 21, Acts, Resolutions, and Memorials Passed at the . . . Annual, and Special Sessions, of the Legislative Assembly of the Territory of Utah (Great Salt Lake City, UT: Brigham H. Young, Printers, 1852), 120, available at babel.hathitrust.org, accessed August 7, 2020. The legislature was not responding to the Egan verdict; it was simply codifying the common law.
55. National Intelligencer, February 15, 1852. As noted earlier, the so-called runaway judges also reported critically on the Egan and Hambleton affairs. See endnote 6, above; Norman F. Furniss, The Mormon Conflict, 1850–1859 (New Haven, CT: Yale University Press, 1960), 28–29; Whitney, History of Utah, 1:480–81.
56. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3. The two pamphlets, entitled “Mormonism! Indictment for the Murder of James Monroe,” were published by Franklin D. Richards and an undisclosed person who had his edition printed in Liverpool by R. James. Smith’s argument and Judge Snow’s charge were also published in the first volume of the Journal of Discourses, first published in Liverpool in 1854.
57. Grant, Three Letters, 42–44.
58. Brooks, ed., On the Mormon Frontier, 2:407–408. Interestingly, Stout was satisfied that Hambleton was justified in killing Vaughn (Ibid., 2:396). Yet he may have been concerned that two such incidents within a short period of time would set a precedent and cause widespread lawlessness.
59. Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968), 149– 73.
60. In fact, the 1852 legislature enacted a statute that provided for a judgment of justifiable homicide when a person killed another who had defiled the first person’s “wife, daughter, mother, sister, or any other female relative or dependent,” as long as such killing was “in a sudden heat of passion.” “An Act in Relation to Crimes and Punishments,” Title XI, section 112, Acts, Resolutions, and Memorials (1852). Howard Egan’s deliberate hunting down of James Monroe more than a year after the “defilement” of his wife would not qualify as justifiable homicide under the 1852 statute because such a premeditated act could hardly be considered to have been committed “in a sudden heat of passion.” It is interesting to note that Utah was one of the few states that as late as the early 1970s still considered such a homicide justifiable and not criminal (Utah Code Ann. Section 76-30-10[4] [repealed 1973]).
61. “An Act in Relation to Crimes and Punishments,” Title II, section 21.
62. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
63. It is possible that, between 1851 and 1868, seducers continued to be punished by relatives of women with whom they had conducted extramarital affairs and that these acts were publicized in 1868 and afterwards only to give fair warning to the newcomers who would be brought to Zion by the soon-to-be-completed transcontinental railroad. It is also possible that the incidence of extralegal punishment of seducers after 1868 was due in part to the increased tensions caused by the influx of “outsiders” into the territory.
64. “Seducer Shot,” Deseret News, February 4, 1868, 3.
65. People v. William Hughes, Docket Number 1585, March 8, 11, 1868, 21800001801, box 24, Salt Lake County Probate Records, USARS; “Acquittal,” Deseret News, March 11, 1868, 1.
66. “Inviolability of Virtue,” Deseret News, February 26, 1868, 2. Ironically, Cannon saw an analogous matter differently when it was his own son, Frank J. Cannon, who “seduced” a young woman while she was working in his home in Logan and his wife, Mattie, was away. The young woman had become pregnant from the relationship. The young woman’s father even told George Q. that Frank had forced himself on his daughter, but the elder Cannon had a more charitable view of the situation when it was his own son who was the seducer. Not only was Frank not killed, George Q. Cannon even made sure that Frank was not disciplined by a church court convened against him in Logan; George Q. and his wife Sarah raised the illegitimate son from the relationship as the twin brother of their youngest child. Kenneth L. Cannon II, “Wives and Other Women: Love, Sex, and Marriage in the Lives of John Q. Cannon, Frank J. Cannon, and Abraham H. Cannon,” Dialogue: A Journal of Mormon Thought 43 (Winter 2010): 83–89.
67. Deseret News, March 27, 1869.
68. “The Provo Homicide,” Salt Lake Herald, January 1, 1871, 2.
69. “The Provo Homicide,” Salt Lake Herald, January 4, 1871, 2.
70. “The Provo Homicide,” Salt Lake Herald, January 4, 1871, 2.
71. Salt Lake Tribune, January 1, 1871.
72. “The Shooting at Hooper,” Ogden (UT) Junction, September 27, 1871, 2.
73. “The Shooting at Hooper,” 2; “The Shooting Affair at Hooperville,” Deseret Evening News, September 28, 1871, 3. The News merely copied the Junction’s comments approvingly into its own columns. The Tribune, of course, had a contrary perception of the case (see Salt Lake Tribune, September 27, 1871).
74. Poland Act, 18 Stat. 254. On the jurisdiction and fairness of the local probate courts, see James B. Allen, “The Unusual Jurisdiction of the County Probate Courts in the Territory of Utah,” Utah Historical Quarterly 36, no. 2 (1968): 132–42; Jay E. Powell, “Fairness in the Salt Lake County Probate Court,” Utah Historical Quarterly 38, no. 3 (1970): 256–62; and Elizabeth D. Gee, “Justice for All or for the ‘Elect’? The Utah County Probate Court, 1855–72,” Utah Historical Quarterly 48, no. 2 (1980): 129–47.
75. “The Seducer’s Portion,” Salt Lake Herald, June 26, 1877, 3. The Deseret News article, also purportedly based on the personal account of Hobbs, varied slightly from the Herald account. “Shooting Scrape,” Deseret News, June 26, 1877, 3.
76. “The Shooting,” Salt Lake Herald, June 26, 1877, 3; “That Shooting,” Salt Lake Tribune, June 26, 1877, 4; “Shooting Scrape,” 3.
77. “That Shooting,” Salt Lake Tribune, June 27, 1877, 4.
78. “Discharged,” Salt Lake Herald, June 28, 1877, 3.
79. “Discharged,” Salt Lake Tribune, June 29, 1877, 1.
80. “A Hasty Wedding,” Salt Lake Tribune, July 14, 1873, 3. Also, there were cases of men who were charged with seduction, including the same day that Justice Clinton performed the marriage of Mr. Pape and the woman who accused him of seduction. “Arrested for Seduction,” Salt Lake Tribune, July 14, 1873, 3; “Seduced,” Salt Lake Tribune, May 12, 1873, 3.
81. People v. Halliday, 5 Utah 467, 474 (1888).
82. “The Provo Homicide,” Salt Lake Herald, January 4, 1871, 2
83. Roberts, A Comprehensive History of the Church, 4:135.
84. Steven Pratt, “Eleanor McLean and the Murder of Parley P. Pratt,” Brigham Young University Studies 15 (Winter 1975): 225, 245–48.
85. The two cases Smith referred to were Louisiana v. Horton and New Jersey v. Mercer. “Indictment for Murder, Plea of George A. Smith, Esq.,” 3.
86. “Seducer Shot,” Salt Lake Herald, January 4, 1871, 2. The acceptance of such extralegal action was not universal. In a case similar to the Egan case in Pennsylvania in 1854, the judge roundly criticized adherents of such a view and described “how much wiser the law is.” Commonwealth v. Moore, 2 Pittsburgh 502, 509 (1864).
87. As quoted in Brown, “Perspectives on American Vigilantism,” 134.
88. Harry K. Thaw, The Traitor; Being the Untampered with, Unrevised Account of the Trial and All that Led to It (Philadelphia: Dorrance, 1926), 149, 163; see also “The Thaw Case,” Canadian Law Review 6 (1907): 101.
89. Brown, “Perspectives on American Vigilantism,” 106– 144.
90. American society apparently did not receive this message entirely as the Mormons might have hoped. Roberts pointed out that enemies of the Latter-day Saints identified the homicides of seducers as examples of “blood atonement” practiced by the Mormons (A Comprehensive History of the Church, 4:135).
