Please the court, and gentlemen of the jury—With the blessing of the
Almighty, although not in a proper state of health, I feel disposed to
offer a 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 of the Jury, you will have to bear with me in my manner
of communication, being but a new member of the bar, and unaccustomed
to addressing a Jury. The case upon which I am called to address you
is one of no small moment. It is one which presents before you, and to
investigate which involves, the life of a fellow citizen.
I am not prepared to refer to authorities on legal points, as I would
have been had not the trial been so hasty; but as it is, I shall
present my arguments upon a plain, simple principle of reasoning. Not
being acquainted with the dead languages, I shall simply talk the
common mountain English, without reference to anything that may be
technical. All I want is simple truth 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 justice awarded to him.
It is highly probable that the manner in which I may present my
arguments, may be exceptionable to the learned, or to the technical
policy of modern times; 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 justice
instead 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 quoted by the learned prosecutor yesterday, in which he stated to
this jury, that the person killed should be, or must be, a reasonable
creature. Now what dark meaning, what unknown interpretation the
learned and deep-read men of law may give by which to interpret this
language, it is impossible for me to say; as I said before, it is the
plain mountain English I profess to 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, had seduced Egan's
wife; that he had come into this place in the absence of her husband,
and had seduced his family, in consequence of which, an illegitimate
child had been brought into the world; and the disgrace which must
arise from 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, according to plain mountain English, a reasonable creature
will not commit such an outrage upon his fellow man; that is
the plain positive truth, as we understand things.
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 argued and decided by Chancellor Kent, that every honest
man was a lawyer, and that the intent of the law was to do justice.
The Statute or Organic Law of Utah, which extends the laws of the
United States, and secondly, in a degree, the laws of England, over
this country, makes a reservation in the matter, which reservation I
wish you to consider favorably, for the benefit of my client—"The laws
of the United States are hereby extended, and decreed to be in force
for said territory, so far as the same or any provision thereof may be
applicable." Now we do not consider the wise legislators extended
these laws over this territory, only that they should be extended
where they should be applicable; they no doubt supposed they might not
be applicable 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 to the understanding, and be applicable to our situation.
I will quote history instead of law. I will go back to the time when
Rome was a young and flourishing state; when in the midst of
prosperity they 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 wisest lawyers of Greece were selected, who formed first a
code written upon ten tables, 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 I can illustrate this to their
understanding, one point is gained, so far as it has a bearing upon
this case.
The laws of the twelve tables were formed for a people possessing the
Greek refinements and Greek ideas, Greek notions of right and wrong;
these laws were made according to a genius of liberty known among that
ripened confederacy. They were brought to Rome, to a people entirely
different in their genius, who placed different values upon different
points, and had different 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 hundreds of mourning families will tell the sad
tale! The truth is written with the blood of thousands, through taking
the rules, laws, and regulations of an old 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, are totally
inapplicable to plain mountain men.
I want to inquire whether the genius, and the spirit, and the actual
existing principle of justice and right, which abide in the
inhabitants of these mountains, are the same as those found among the
nations of the old world? And whether such an application of law and
justice as that I have just noticed is applicable to us?
In England, when a man seduces the wife or relative of another, the
injured enters a civil suit for damages, which may perhaps cost him
five hundred pounds, to get his case through; and, as a matter of
course, if he unfortunately belongs to the toiling million, he may get
twenty pounds as damages. In this case, character is not estimated,
neither reputation, but
the number of pounds, shillings, and pence
alone bear the sway, which is common in courts of all old and rotten
governments.
In taking this point into considera tion, I argue 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. I may be
asked for books. Common law is, in reality, unwritten law; and all the
common law that has been written is the decision of courts; and every
time some new decision comes up, it is written, which you may find
stacked up in the Attorney General's office, in Great Britain. This is
continuing: fresh decisions are still being made, and new written
authorities added, and precedent upon precedent established in the
courts of the United States and Great Britain; and must we be judged
by these ten thousand books?
What is natural justice with this people? Does a civil suit for
damages answer the purpose, not with an isolated individual, but with
this whole community? No! It does not! 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!
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. Egan said, "Do you know the cause?" Mr. Horner had been made
acquainted with it; he said he advised Monroe, and told him for God's
sake to leave the train, for he did not wish to see him killed in his
train. Mr. Horner knew the common law of this Territory: he was
acquainted with the genius and spirit of this people: he knew that
Monroe's life was forfeited, and the executor was after him, or he
(the executor) was damned in the eyes of this people forever. "Do
leave the train," says Horner; "I would not have you travel in it for
a thousand dollars." Was Monroe a reasonable creature? A dog that
steals a bone will hide away; but will a man be called a reasonable
creature, when he knows the executioner is on his track, and at the
same time walk right over the law, crawl between the sheets of a
fellow citizen, and there lay his crocodile eggs, and then think to
stow away gunpowder in a glowing furnace? If we are called upon here
to say whether a reasonable creature has been killed, a negative reply
is certain.
Not Mr. Horner only, who has testified that he knew the cause of the
deed, but a number of others. When the news reached Iron County, that
Egan's wife had been seduced by Monroe, the universal conclusion was,
"there has to be another execution;" and if Howard Egan had not killed
that man, he would have been damned by the community forever, and
could not have lived peaceably, without the frown of every man. Now we
see that the laws 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 the law of England which pertains to the
sovereign lady, the Queen, alone. I will apply it, and with much
better sense: "To seduce the sovereign lady, the Queen, is death by
the law." I will say, here, in our own Territory, we are the sovereign
people, and to seduce the wife of a citizen is death by the common
law.
There is no doubt but this case may be questioned, but there is an
American common 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 instances in the United States, where persons standing in a
like position to this defendant have been cleared. I will refer to the
case of "New Jersey v. Mercer," for killing Hibberton, the seducer of
his sister. The circumstance took place upon a public
ferryboat, where Hibberton was shot in a close carriage in the most
public manner. After repeated jury sittings upon his case, the
decision was not guilty. We will allow this to be set down as a
precedent, and, if you please, call it American common law. I will
refer to another case: that of "Louisiana v. Horton," for the killing
of the seducer of his sister. The jury in this case also found the
prisoner not guilty. This is the common practice in the United States,
that a man who 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 shot him not more than ten feet from the Court House. I
saw the prosecutor, and conversed with him, and have a knowledge of
the leading facts. I bring these instances before the jury, to show
that there are parallel cases to the one before us in American
jurisprudence; and yet, in some of the States a civil suit for damages
will answer the purpose.
Walker, on this subject, for instance, in the State of Ohio, tells us
in 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 that these civil suits are tried in this way? It is
because the spirit which actually reigns in these rotten and overgrown
countries is to prostitute female virtue.
Go to the cities of Great Britain where the census reports between two
and three hundred thousand prostitutes: if a man seduces a female, no
matter how it occurs, a few pence is all the scoundrel pays. He damns
the woman, who is consigned to in-famy, and compelled to linger out a
short existence, and ultimately covers her shame, seeking repose in a
premature grave; and this 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, where the genius, spirit, and regulations of
society are different from those old 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 killing sheep. Female
virtue is not protected by those old governments; but they are corrupt
institutions, which prostitute and destroy the female character and
race.
Just consider this matter. Are the law, the genius, the spirit, and
the institutions of a people who go in for preserving inviolate—in
perfect innocence, the chastity of the entire female sex—are they to
compare with the 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 United States have wisely provided that the laws of
the United States shall not extend over us any further than that they
are applicable.
The Jury will please to excuse my manner of treating this matter: I am
but a young lawyer—this is my first case, and the first time I ever
undertook to talk to a Jury in a court of justice. I say, in my own
manner of talking upon the point before you, a fellow citizen, known
among us for years, is tried for his life; and for what? For the
justified killing of a hyena, that entered his sheets, seduced his
wife, and introduced a monster into his family! And to be tried, too,
by the laws of a government ten thousand miles from here!
If Howard Egan did kill James Monroe, it was in accordance with the
established principles of justice known in these mountains. That the
people of this Territory would have regarded him as accessory
to the crimes of that creature, had he not done it, is also a plain
case. Every man knew the style of old Israel, that the nearest
relation would be at his heels to fulfil the requirements of justice.
Now I wish you, gentlemen of the jury, to consider that the United
States have not got the jurisdiction to hang that man for this
offense: the laws are 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 that have been ceded away to somebody
else to act upon.
For instance, the learned attorney for the prosecution read a certain
item in the law of the United States yesterday to the jury, that they
might know 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 are called upon to hang a man according to the
customs of a nation ten thousand miles from here, whose principles,
organization, spirit, ideas of right and wrong, of crime and justice,
are quite different from those which prevail in this young and
flourishing territory. To enforce these laws would be highly
pernicious to our prosperity as a people, and as a nation. Therefore,
Congress has wisely provided that the people of this territory should
not be thus imposed upon; for instance, as long ago as Sept. 9, 1850,
they passed an act providing for the organization of a judiciary, that
an original jurisdiction should 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, and is not therefore under the
exclusive jurisdiction of the United States.
I have been admitted to speak before this intelligent court, for which
I 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 limited knowledge I have of law, were I a juryman,
I would lie in the jury room until the worms should draw me through
the keyhole, before I would give in my verdict to hang a man for
doing an act of justice, for the neglect of 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 shall insinuate himself into the community, and seduce his
neighbor's wife, or seduce or prostitute any female, may expect to
find no more protection than the 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 our females 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, that the chastity of our women, our wives and
daughters, may be preserved: that the 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 the
defense, you are aware that you are borne out in this by the
precedents already set up by the Courts of the United States in the
few instances I have noticed; that the jurisdiction of the United
States extending to this case, does not exist; that the laws of the United States do not apply to it at all; and as men who look
for justice, as intelligent lawyers, knowing what is right and wrong,
must know, that a verdict, such as the defendant desires, will alone
bear justly on the case.
I feel very thankful to the honorable court, and to the jury, as also
to 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 so as to treat it in a manner to satisfy myself, and do
justice to the case of my client; and I would say further, what I have
said has been in my own mountain English; what the learned prosecutor
may be able to show I cannot tell; enough has been said to show you
that this defendant has a right, upon just and pure principles, to be
acquitted.
- George A. Smith