44 Allow the Law to Take Its Course: Utah, January‒March 1877

Sumner Howard sought to make political hay from his success in the Lee case. In early January 1877 he asked Utah’s congressional delegate, George Q. Cannon, to use his influence to appoint him as a judge. Howard promised Cannon “if he got the office, that he would administer the law fairly.” He said he had no ill feelings towards Mormons but would treat them justly “as citizens of the United States.” Cannon assured him he would do what he could.¹Close

Judge Jacob Boreman’s term was drawing to a close, and Howard knew there was animosity between him and the Latter-day Saints.²Close Though Cannon viewed Howard as an improvement over Boreman, the judge had no intention of retiring and was reappointed. In the end nothing came of Howard’s overtures.³Close

Meanwhile, Lee finally came up with funds to appeal his case. “I got Col Nelson to have me taken to the city twice to try & raise the money,” he wrote. After weeping and pleading, “I at last prevailed with Capt [William H.] Hooper and Bp John Sharp to loan me $250.” William Bishop then agreed to travel to Salt Lake to represent Lee before the territorial supreme court, which granted a stay of Lee’s January execution pending the appeal.⁴Close

Bishop challenged nearly everything, from the 1874 grand jury that indicted Lee to Judge Boreman’s 1876 closing charge.⁵Close Bishop argued that the indictment filed before the first trial was not lawfully presented to the grand jury and that the guilty verdict in the second trial was based mainly on “the evidence of confessed accomplices.”⁶Close

Howard and his co-counsel responded that “the verdict was supported on the testimony of unimpeached witnesses,” reading in full the testimonies of Nephi Johnson, Samuel Knight, Samuel McMurdie, and Jacob Hamblin. Following this counterargument, Bishop declared “that the whole Mormon Church was accessory either before or after the fact.”⁷Close

The territory’s supreme court—made up of Utah’s three U.S. district court judges, including Boreman—ruled that “the defendant was fairly and impartially tried,” affirming the lower court’s judgment.⁸Close

Defeated, Bishop complained to Lee that “we had the prejudice of civilization to contend with—the united press of the nation opposed us, and no one was found who would speak a word of kindness in your behalf.” Bishop also blamed Latter-day Saint leaders. “We found the so-called Head of the Church furnishing evidence against you and the members all arrayed as willing tools. . . . The whole people it appeared demanded a victim. Under such circumstances we could only fail.”

Bishop assured Lee he had done his best. “Men of greater ability could have been secured to defend you,” Bishop wrote him, but no one “would have been more truly devoted to your interests than I.” He would have succeeded were it not for so much “outside pressure and prejudice.”

Since Lee had no more money, Bishop let the period expire for appealing to the United States Supreme Court.

“I am sorry that you were unable to raise the money,” the defense attorney wrote, “for I do think we could have reversed the case in that court—But,” he added callously, “it is useless to speak of what might have been—it is existing facts that now demand attention—I do most certainly wish and expect the remainder of your manuscript.”⁹Close

Lee promised to send his life history “without delay.”¹⁰Close Others tried moving in on Bishop’s literary turf, but Lee loyally fended them off. As he explained to one suitor, “My worthy attorney W. W. Bishop held that right by previous arrangement made at my trial at Beaver.”¹¹Close

Bishop’s expectations were deflated when the manuscript arrived in early March. Lee had written extensively about his early years but nothing about his life in Utah or the massacre. This was “the most material part of it all,” Bishop complained to him—and the part most likely to sell books. Knowing his client was about to face a firing squad, Bishop asked for Lee’s journals and other writings he could use that might “throw light on the work” posthumously.¹²Close

Lee kept up his writing and went to great lengths to have his family collect his journals for Bishop.¹³Close Bishop and Nelson received the journals but did not return them to Lee’s family as agreed. Decades later, Bishop and Nelson descendants still had some of Lee’s journals and sold or donated them to California’s Huntington Library. The others somehow disappeared.¹⁴Close

Bishop later acknowledged that Lee left his manuscript in an “unfinished state” but claimed Lee “had previously dictated a full confession to me.”¹⁵Close Although Lee did make a confession to Bishop prior to his first trial when he was plea-bargaining with prosecutors, they declared the confession incomplete and unsatisfactory. “The real reason for their refusal to discharge Lee and accept his statement,” Bishop had written in July 1875, “is that John D. Lee shows, beyond the possibility of a doubt, that Brigham Young is innocent and knew nothing of the transaction until many days after the massacre occurred.”¹⁶Close

As Lee languished in prison, lawmen hoped to apprehend other massacre perpetrators. Deputy William Stokes—who arrested Lee and William Dame—believed he could capture Haight, Higbee, and Stewart if he could just get financing for his efforts. Stokes feared that if they were “not arrested soon, . . . they will all be gone to New-Mexico.”¹⁷Close

Howard wrote Attorney General Alphonso Taft again, requesting a five-hundred-dollar reward for the capture of each fugitive. “No ordinary method will secure them,” he implored. They were “desperate men” who had “the sympathy and assistance” of many others.¹⁸Close

The mercurial George C. Bates, one-time prosecutor and erstwhile Lee defense lawyer, also wanted in on the action. He felt these men, who were once his clients, had betrayed him. “They have sold me out, turned their backs upon me, and put their case into the hands of [Jabez] Sutherland,” Bates’s former partner, “who intrigues with others to let them escape,” he asserted. The fugitives “are as guilty as old John D. Lee himself,” he told Judge Boreman, “and they can be, and ought to be captured, brought into Court, tried, convicted and sentenced to-death.”

Bates claimed friendship with men in President Rutherford Hayes’s cabinet and wanted to use his connections to get an investigator to help him.¹⁹Close

But Judge Boreman shot down Bates’s appeals. “It would be very unfortunate if M^r Bates should get from the Department any recognition in the respect he refers to,” Boreman wrote the new U.S. attorney general Charles Devens. “He cannot be trusted with the arrest of any one” and “is totally unreliable.”²⁰Close

In early March, Howard and Nelson prepared to transport Lee from Salt Lake back to Beaver to await his execution. The prosecutor confided he “felt very keenly the uncomfortable outlook of the proposed journey over a wild, mountainous, and almost uninhabited country of 150 miles with a man like Lee in charge, and only Marshal Nelson and myself to guard him.”

Howard worried about a possible rescue attempt, hearing Lee had “40 sons who had sworn that he never should be executed.” In reality, Lee had twenty-four living sons, some of whose mothers had long ago left him and ten of whom were still children.

The only foe Howard and Nelson ended up facing was mud. They had to get out of their coach when it got stuck, and Howard observed that his overshoes became buried “so deep in the muddy soil of Zion that the Latter-Day Saints . . . will need a revelation to find them.”²¹Close

When the trio reached Beaver, “the only relatives awaiting [Lee’s] arrival were a son and son-in-law. All men appear to have forsaken him,” wrote a Deseret News correspondent.²²Close

Howard and Nelson turned Lee over to U.S. soldiers stationed at nearby Fort Cameron.²³Close The prosecutor and marshal reported they had reason to believe Lee’s wife Rachel “has been in active communication with certain Indian warriors, evidently with a view of securing their co-operation in an effort at rescue.”²⁴Close Rachel may have only been fulfilling her husband’s plea to find Indians to help capture Haight, Higbee, and Stewart. Still, Howard requested “an order on the commander of Fort Cameron, Beaver, for guard to prevent the rescue of John D. Lee.”²⁵Close

Lee was accordingly placed in solitary confinement.²⁶Close

Two sentinels stood continual duty at the guardhouse, instructed to “allow no communication whatever with the prisoner by soldiers or citizens” unless “provided with a pass by the U.S. Marshal, countersigned by the Comd’g Officer; and then only in the presence of the Officer of the Day.”

Fort Cameron’s commanding officer even ordered that until the day after Lee’s execution, no passes would be issued for “men to leave the post” because “the probability of an attempted rescue demands the presence of all the men at the Garrison.”²⁷Close

The tight security frustrated members of the press, who wanted access to the infamous prisoner. A New York Herald reporter speculated that Lee’s seclusion stemmed from Howard’s “hopes to obtain from the prisoner a sworn statement with regard to the participation of Haight, Higbee and Dame in the Mountain Meadows massacre.” But Marshal Nelson told the reporter “Lee has no statement to make,” claiming Lee’s contract with Bishop “to publish a book containing Lee’s statement of the origin and development of the movement which resulted in the massacre” precluded the prisoner’s communication with the press.²⁸Close

Despite such claims, a writer for the Salt Lake Tribune believed that with Lee “left alone, and in the hands of cussed Gentiles, as the dread Everlasting opens its portals before him, it is more than likely that he will make a clean breast of it.”²⁹Close

Soon after his arrival, Lee was taken before Judge Boreman, who had also traveled south from Salt Lake City. The prisoner appeared “utterly broken down.”³⁰Close Over the previous few weeks, his favorable treatment in the Salt Lake penitentiary had ended, and he had been locked up with other prisoners. “The foul air & filthy stench” of the chamber pots and the cold, rock floor “was near taking my Life,” Lee had complained. “My Lungs was fearful.”³¹Close When Judge Boreman asked if he had anything to say about his sentence, Lee said no. Boreman set his new execution date for March 23, 1877.³²Close

Lee spent his last days focused on writing his life history. “He eats and drinks little, is cool and firm, and seems to have given up all hope of a reprieve, and says he will die bravely, making no new revelations.”³³Close

A few months earlier, Lee’s second-oldest son Joseph had written him, “If you have don rong ignorantly then there is not so much sin attributed to you but if you did rong with your eyes open then is the greater sin upon you.” If Lee was guilty, Joseph told his father, his execution would be an atonement for his sin. “If god suffer the wicked to slay you the debt is payed and you are honerable in the site of god & richeous men.”³⁴Close

Other Lee descendants were not as willing to accept Lee’s sentence. A granddaughter circulated a petition to commute his death sentence to life imprisonment.³⁵Close In Beaver, one son passed around a petition for his pardon.³⁶Close

Some took a dim view of these efforts. “Our dispatches say that attempts were made by Lee’s friends and some Gentiles to have his sentence commuted,” a Nevada newspaper reported. These “lily-hearted, cowardly and imbecile Gentiles” should have their names “covered with execrations as thick as a Mormon’s hide is plastered with fanaticism.”³⁷Close

Utah governor George W. Emery received at least three petitions to pardon Lee—from Beaver, Panguitch, and Greenville, Utah—though the Salt Lake Daily Herald doubted a petition “would have any influence on his excellency.”³⁸Close The first signature on the Beaver document was from Lee’s former defense attorney Wells Spicer, who may have authored it. Portions closely resembled arguments defense attorneys used during the second trial, including that Lee “is but one of many who are equally guilty” and was convicted by the testimony of co-conspirators, thus being “made a sacrifice to atone for the whole crime.”

Unlike arguments used at Lee’s trials, the petitions also asserted—as Lee tried to do in 1858—that the massacre was covered by President James Buchanan’s pardon and Governor Alfred Cumming’s clemency after the Utah War. The petitions falsely claimed the massacre had “been condoned & pardoned” following “an investigation by the authorities of the U.S. and by his Excellency governor A. Cumming.”³⁹Close

Governor Emery thoughtfully considered the petitions. “If I consulted only my feelings in the premises I should yield to your entreaties,” he responded. “But when I reflect upon the horrible crime Mr. Lee committed and the unmistakable evidence of his guilt, there is nothing left to me but to allow the law to take its course.”⁴⁰Close

Emery also called it “a lame excuse” to claim “it was necessary to sacrifice those emigrants for the reason that an army was about to invade this Territory.” He emphasized that they “were a peaceable company of travelers . . . seeking homes still further west” and should have been protected instead of “foully murdered.”

Neither was the governor swayed by the argument that Lee was just one of many participants. “Mr. Lee is to be punished for the part he personally bore in the terrible affair,” he explained, “and all participants with him are to be punished as soon and as fast as the officers of the law can apprehend and bring them to trial.”⁴¹Close

Most Utahns agreed with Governor Emery. Though more than five hundred people signed the petitions to have Lee pardoned, the vast majority of Utah citizens did not. Instead, noted the Mormon-owned Salt Lake Daily Herald, there seemed an “almost universal feeling that he should be made to atone for his crime.”⁴²Close

On March 22, 1877, the day before Lee was to be shot, Emery received a telegram “from the United States Marshal at Beaver, inquiring if he had anything further to communicate relating to Lee.”

“Nothing whatever,” the governor replied.⁴³Close